
    SOUTHERN TRACTION CO. v. HAWKINS.
    (No. 5689.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1916.
    Rehearing Denied Jan. 24, 1917.)
    Appeal and Error <&wkey;1177(7) — Reversal— Insueeiciency oe Evidence.
    In an action against a street railroad by a party who drove his automobile in broad daylight against a moving street car, case reversed for a determination of the material issues of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4609; Dec. Dig. <&wkey;> 1177(7).]
    Appeal from McLennan County Court; George N. Denton, Judge.
    Action by B. W. Hawkins against the Southern Traction Company. From a judgment for plaintiff, defendant appeals.
    Case reversed and remanded.
    Nat Harris and Spell & Sanford, all of Waco, for appellant. Williams & Williams, of Waco, for appellee.
   JENKINS, J.

Appellant’s street car was being propelled south on Tenth street in the city of Waco in the daytime. Appellee, who was familiar with the operation of the cars on said street, was traveling west on Morrow street, at right angles to Tenth street. I-Ie drove his automobile against the street car, striking the same about the center or near the rear. His auto was injured by the collision. I-Ie alleged negligence upon the part of appellant: (a) In failing to ring the bell or sound the gong; (b) in traveling at a high and dangerous rate of speed; and (c) in failing to discover appellee in time to avoid the collision. The testimony as to these allegations was conflicting. Appellant, in addition to a general denial, alleged contributory negligence on the part of appellee. There was judgment for appellee for $350.

Perhaps one may drive an automobile in broad daylight against a moving street car without being guilty of contributory negligence, but that such was the fact in the instant case is not made to appear. The case was not as fully developed as it should have been. For instance, it appears that there was a house and some trees on the lot at'corner of Tenth and Morrow streets, but it does not appear whether or not these interrupted appellee’s view of the car on Tenth street. Appellee stated that he saw the street car when he was about the property line on Tenth street, but the evidence does not show the width of that street. Appellee says that he could have stopped his auto in about its length, but the testimony does not show the length of his car.

In order that material issues of fact may be determined by the trial court, this case is reversed and remanded.

Reversed, and remanded. 
      ifozaFor other cases see same topic and ICEY-NUMBER.in all Key-Numbered Digests and Indexes
     