
    BOGUE v. TEXAS TRACTION CO.
    (No. 2345.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    1. Appeal and Error <@=>1175 — Determination.
    A judgment for an employs should not be reversed without remand on account of his contributory negligence, if the evidence, when considered in the light most favorable to the employs, was such that a jury might fairly find he was free from contributory negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. <§=> 1175.]
    2. Street Railroads <@=>98 — Operation — Collision — Contributory Negligence.
    A street railway motorman, knowing that a car operated by another company on the same track was directly ahead of him and that such car carried no rear lights, propelled his car at a high rate of speed, in violation of the rules of his company. Despite the approach of a car from the opposite direction, he did not wait for it to cross an intersecting street, as required by the rules, but ran his car across the street and collided with the one ahead of him. Held, that the motorman was guilty of contributory negligence, as a matter of law, precluding recovery against the owner of the car with which he collided.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. <@=> 98.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by E. L. Bogue against the Texas Traction Company. A judgment for plaintiff was reversed and rendered by the Court of Civil Appeals (139 S. W. 1042), and plaintiff brings error.
    Affirmed.
    Barry Miller, Ed. Sewell, and Carden, Starling, Carden & Hemphill, all of Dallas, for plaintiff in error. T. B. Williams and M. B. Templeton, both of Dallas, for defendant in error.
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement with reference to the case:

“This is a suit by appellee to recover of the Texas Traction Company damages for personal injuries received by him by reason of the car operated by him on the Metropolitan Street Railway running into the rear end of a car operated by the traction company on the said street railway track. Appellant pleaded the general issue, assumed risk, and contributory negligence. A trial resulted in a verdict and judgment for ap-pellee, and appellant prosecutes this appeal.
“The first assignment of error complains of the court for refusing to submit to the jury a special instruction as follows: ‘You are instructed in this case to return a verdict for the Texas Traction Company.’
“The facts show that Bogue was an employé of the Metropolitan Street Railway Company in the city of Dallas, and at the time of the accident was operating one of its cars as motorman. The Texas Traction Company operated an interurban line from Dallas to Sherman, and in the city of Dallas its cars run over the track of the Metropolitan Street Railway Company. The street railway company has double tracks extending north and south (general direction) across East Dallas along Peak street, a distance of probably a mile or more. These tracks cross at right angles streets of the city, a distance from one another of 300 to 400 feet, at which crossings arc lights are swung by the city in the usual way. The city cars are called ‘North Belt cars,’ and go the full length of Peak street, crossing Bryan. The interurban cars leaving the city pass out over Peak street to Bryan, then turn at right angles going into Bryan street and in a northeast direction out of the city. The incoming cars enter the city over the same line.
“The accident occurred at 11:45 o’clock at night. The incoming interurban ear turned out of Bryan street into Peak street ahead of the city car. As the turn was made, the city car was some 400 or 500 feet north on Peak street. Bogue, the motorman, saw the interurban as it swung around the corner at Bryan and passed over the switch to the right-hand track, coming in. By that time Bogue had approached still nearer the car. He could see the interurban because its side was 'turned towards him and the inside was brilliantly lighted with electric lights. Bogue discovered at that time that there were no lights upon the rear end of the. interurban car. The collision occurred at Swiss avenue crossing, being the second crossing south of Bryan. The surface is level from Bryan to Swiss, rising just a little. The incoming interurban had stopped on the south side of Swiss avenue about the same time the outgoing interurban came up alongside of the incoming car and stopped, or almost stopped. At this time the city car approached Swiss avenue from the north.
. “Appellee testified: ‘There were no red lights on the rear end of the incoming interurban car. I discovered that just after I hit it; and before he taken the cross over on Bryan street I did not see any red lights on the rear end of it. The first time I discovered there were no red lights on it was after it had turned into Peak street. After it passed I did not think very much about it. I knew it would pull right off and leave me like they always do. I did ntt think anything about running behind a car that had no red lights on it. I was not dreaming of any such thing as running behind that car; did not know anything about it; never had thought of it. I was not expecting to run into it. When I first saw it I never thought much about it, only I thought it did not have any markers on the back of the car. I have seen them several times since. I don’t know that I ever noticed it before. I know that at that time they did not often carry them, but did not know it at that time. I also knew that a bright light was shining in my face. I think that if you were going south and following another car going- south, and there is a car on the other track going north, there would be a time when the car in front going south would prevent you from seeing the car going north on the other track. I was running something like six or seven miles an hour when I got to the north edge of Swiss avenue and the south-bound interurban car something like six or seven feet, something like that, below Swiss avenue. The north-bound interurban car was just sticking over a little bit into Swiss avenue, or aboxxt even with Swiss avenue, or something like that. When I came up to Swiss avenue, and going into Swiss avenue, I think I was going aboxxt six or seven miles an hour. When I got to the south edge of Swiss avenue I was making about three miles an hour; not over three miles an hour. I had to pass the headlight of the north-bound Texas Traction Company car before I saw the soxith-bound Texas Traction Company car, which xvould put me around about the soxxth side of Sxviss avenue when I discovered the south-bound Texas Traction Company car. The reason I did not see it sooner is because the headlight on . the north-bound traction company car was so bright it blinded me, and I could not see it. The headlight of the north-bound Texas Traction Company car, which was on the opposite track from the track I was on, was so bright it blinded me. That headlight was very bright, in full blast. They usually use a screen of white cloth over the headlight to make it dim. They do that to screen the headlight so it would not burn so bright. It is to blind it. I have seen those screens of cloth used on this Ft. Worth interurban — the Northern Texas Traction Company; and then they have used that on these Sherman interurbana since. The Texas Traction Company have xised them since I had the accident. They either used the screen, or, when they come out Peak street here, they cut their lights oxxt very nearly. * * * There is a rule in the rule book of the Dallas Street Railway Company about the speed of cars passing cars that are standing still. * * * The rule is that when one car is standing still, and you are approaching with another car, the speed is three miles an hour, and over switches the same way. You are supposed to go over sxvitches at tlu-ee miles an hour when an inspector is around. I don’t know how fast a motorman oxxght to run. I did not know when I was in the service. All I cared was to make the schedule time that xvas given. I xvas due at the loop on Market street that night at 12 o’clock. I had only 15 minutes to run from Bryan street to toxvn. I don’t know how far that is, but suppose it is over two miles. The rule in regard to spacing between cars while in motion is 300 feet, and at rest, 25 feet. * * * When the interurban car turned off of Bryan street into Peak street I guess I was about three blocks north of it, something like that. I suppose it would be about 600 feet. That would throw the north side of the interurban car towards me as it took the crossing off of Bryan into Peak street. While operating a street car, the motorman is supposed to stand in the center of the car in the front end, in order to operate both his brake and con-trollei-. They are located right there ; one on one side and the other on the other side. The rule respecting attention and observation in respect to the track in front is to look ahead of you continxxally while the car is in motion. I understood that at the time. I saw the interurban car ahead turn in on Bryan and Peak street. * * * When I pulled out from Bryan street south, I don’t know bow far ahead of me the interurban car was. * * * I knexv about the time I got to Swiss avenue that the northbound interurban car was standing still. I saw the light before that, but you can’t tell whether they are moving or not. I did not know it was standing until I got up to about the edge of Swiss ax'enue, as well as I remember. My judgment is I was something like the north edge of Swiss avenue when 1 discovered the north-bound interurban car ahead stopped. It was on the south side, with the body of the car down Peak. * * * Having discovered it, it did not occur to me that it had stopped in order to let another car pass. I thought it had stopped there because about a montli before this there was a Sherman interurban car hit a wagon there on Swiss avenue. The first thing struck me was it was something like that. I never thought of this other car. * * * If it had not been for that thought about the xvagon I would have stopped anyway, because, after I saw the car had stopped, I xvould hax'e_ to roll on down just like I had to pass a car, just like I always pass a cai* standing still. I never thought about the fact that the motorman on the interurban car ahead of me would have to stop his car on account of that regulation, and that he might be standing there in the dark. There were lights on the inside of the car ahead of me. There are lights in all cars. I saw them through the glass door. I saw the lights as the car passed Bryan street at the crossing over there. .* * * I would not swear that it is an electric light. I do not know a thing in the world about the headlight on one of thesg interurban cars. The lights on our cars are just like the lights here in the courtroom — 16 and 32 candle power. We had a light on the rear end of our car, but not a red light. It was not our order to have red lights on the rear of the car. I don’t know that the city ordinances requix-e that. * * * For stopping the car, my car was equipped xvith a hand brake and a reverse lever. The reverse lever is attached to the controller of the car at the front end, and it has three notches on it; one locks the controller, and the notch ahead feeds the controller when you put the juice or current to it. The hand brake is used ta stop the car. We do not use both the hand brake and the reverse to stop the car. The reverse lever is used only in emergencies. The stopping power comes from the brake operating- against the wheel. When you jerk the re-vex-se lever, that turns the wheels in the opposite direction. To reverse a car you pull the lever and feed the controller; that is, feed the current into the reverse machine of the car. You can use both bands and do that all at once. The car xvas in good condition, except a little tight with the brakes kicking. A kicking brake is one that is not adjusted right and jerks a little. I was pretty well qualified to perform my duties, and thought I understood what they were. I familiarized myself with the rules and regulations; had them furnished me by my superiors in the service, and studied them while I was breaking into the business. Of course, I understood that I was expected to obey the rules and regulations. I knew that in passing over Peak street xve passed the interurban cars now and then. There are two tracks out on Peak street, and all cars going north go on the right-hand track. Peak street is double-tracked to where Washington avenue car line runs. Going north, the cars ax-e on the right-hand side, and coming south, it is the same way. As the cars pass, there is a space, I guess, of two or three inches between them. There is no rule about speed in regard to passing ears -while they are in motion. There is a rule in the rule book of the Dallas Street Railxvay Company about the speed of cars passing cars that are standing still. I haven’t the booh with me. We are not allowed to keep it after we quit. The rule is that when one car is standing still, and you are approaching with another ear, the speed is three miles an hour, and over switches the same way. * * * I don’t know of any rule of the interurban company that when one interurban meets another it had to come to a stop, and there is no reason that I know of for the north-bound ear to stop when it met the south-bound. I never had any order to put any lights or signals on the rear end of my car. Our instructions are to keep our headlights cut out on the rear end of our ears. The interurban cars put signals on the back end of their cars because they are easily seen, and that is why they used red lights instead or white lights. I don’t know whether they had been running with red lights back there in the rear before I was hurt or not. When you are meeting one of these interurban cars with a bright headlight burning, you are not able to tell whether the car is moving or not until you get pretty close to it.’
“Bogue made a signed written statement to his company within a few hours after the accident. He said: When I first saw the .car I was only 15 or 20 feet away from it. It was standing, and I was running about 10 or 12 miles an hour when I first saw it. The Texas Traction cars had met there and had stopped. The one going north had the headlight burning very bright, and blinded me so I could not see the other one. There was ’no red light on the rear end of the south-bound Sherman car. There were no lights of any kind. They were about a car length south of Swiss avenue. When I first saw the Sherman car, I set up my brakes and reversed and blew the overhead. Then I ran into the Sherman car. The front end of my car was crushed in, and the top of the controller was turned loose, but never fell. I had my foot under the bottom of the controller; and I think when the top was turned loose it fell back and caught my toe under the edge of it is what hurt my foot. I was knocked down, but fell- down against the end of the car. I could see the headlight on the northbound car from the time I crossed Bryan street until I struck the south-bound car. I have had no orders about passing Sherman cars. I had several passengers on my car, and none of them were hurt. I am not hurt anywhere, except my foot. Dr. Doolittle saw my foot. He said there were no broken bones. My car was not in good condition. The brakes were bad. I bad not reported them. I had had the car since 5 :30 p. m. I do not hardly know what was the matter with them, except that they were what we call a kicking brake. I do not know how they were at this particular time. I had to commence trying to stop a good piece back from where I wanted to stop on account of the condition of the brakes.’
“One of the printed rules of the street car company reads as follows: ‘When passing cars that are at a standstill on opposite tracks, cars that are about to stop, or when passing cars in any part of the city where the street traffic is heavy, or pedestrians or vehicles are near by, the car must be slowed down to a speed not exceeding three miles per hour, and must be under absolute control so that instant stop is possible.’ Another rule: ‘Gars must be under control crossing intersecting streets. Cars running in opposite directions must not cross intersecting streets, steam or electric railway tracks at the same time. The car reaching the street, steam or electric railway tracks first will have the right of way and the other car must wait until the first car has passed over.
“The evidence was conflicting with reference to the interurban car having a light on its rear end at the time of the collision, and it was sufficient to support the jury’s finding that there was none. It also shows that appellee was injured by the collision. Plaintiff offered in evidence an ordinance under date 1877, of the city of Dallas (chapter 4), entitled: ‘Buies governing the operation of street railways; street railways subject to the conditions of this chapter.’ It was provided that the rules and regulations concerning the running and operation of street railway cars shall be binding upon every person, firm, or corporation operating a street railway within or leading into the city. 'Section 8: ‘The cars after sunset shall be provided with signal lights.’ It is shown that in 1908 Texas Traction Company owned and operated an interurban railway from Sherman to Dallas, having tracks, right of way, depots, etc., and running into the city over the lines of the city street railway by virtue of an ordinance of the city granting the right and permission to operate its cars over the track of certain railway companies, and that said ordinance was granted subject to the existing charter and ordinances of the city of Dallas and such future charter and ordinances as may hereafter be passed, etc. It was also shown, by the city charter adopted in 1907, that interurban railways are therein defined to be, within the meaning of the charter, ‘railways operating their cars by electricity for the carriage of freight and passengers for hire, not wholly within the city and its suburbs, but as linos extending from the city of Dallas and its suburbs to other towns, cities or villages.’ ‘That the board of commissioners shall have power, subject to the terms and conditions contained in this charter, to grant to a person or corporation, desiring to extend an interurban railway into the city, the right to lay tracks and operate ears over the streets or other property of the city and over the tracks of other street railways for a term not exceeding twenty years.’ Also: ‘The right mentioned in the preceding section shall be granted by ordinance only, which shall not be finally passed until after three separate readings, etc. * * * The ordinance granting such right or franchise shall contain such conditions as may seem proper to the board of commissioners, and shall provide for such reasonable compensation to the city as may seem just,’ etc. It is then provided in the next section: ‘The terms of this charter concerning the granting of franchises to persons or corporations, for the purpose of rendering any public service wholly within the city of Dallas and its suburbs, shall not apply to interurban railways, except as specified in the four preceding sections and in the various sections providing for the referendum.’ The city ordinance provided that: ‘Gars driven in the same direction shall not approach each other within a distance of 300 feet, except in case of accident.’ Ordinance also provided: ‘It shall be unlawful for any person to propel, drive or move any street car at any place in the city of Dallas at a greater rate of speed than 12 miles per hour.’ It is also provided by city ordinance that 12 consecutive hours shall be the limit to keep conductors, motormen, etc., on the cars. Also a rule of the company that, in passing cars at a standstill on opposite tracks, the speed in no event to exceed three miles per hour, and must be under absolute control, so that instant stop is possible; also at street crossings make full stop on opposite side of street to let the car upon the opposite side, reaching it first, pass over, etc.”

The Court of Civil Appeals should not have rendered the judgment in this case if the evidence is such that a jury might fairly arrive at the conclusion that the plaintiff was not guilty of contributory negligence by his act of running into the rear of the ear of the street .car company. Stevens v. Masterson, 90 Tex. 417, 39 S. W. 292, 921; Warren v. Harrold, 92 Tex. 417, 49 S. W. 364. This presents usually a difficult question for this court, for it calls upon the court to place itself in the attitude of the jury, to determine the weight of the evidence most favorable to the plaintiff, discarding all evidence to the contrary. If, therefore, fairly considering the evidence with a view of arriving at a just solution of the issue between the railway company and the plaintiff, the jury might have concluded that the plaintiff wae not guilty of negligence which contributed to his injury, then we must reverse the judgment of the Court of Civil Appeals and remand the case for another trial.

Tn order to present this question, we will briefly state the points in the evidence of the plaintiff which tend to show the character of his act. In the first place, on the same track he had fallen in behind, and followed for some distance, the car of the interurban company, into which he ran subsequently, and he saw that it had no light in the rear. There was no evidence that the interurban car was required to carry a light in the rear, but we will consider the question upon the assumption that it was the duty of that company to have provided rear lights for its cars under such circumstances.’ We will therefore assume that the motorman on the interurban car was guilty of negligence in failing to have a light on the rear of the car, with which the car, which the plaintiff was operating, collided. This reduces the question to: Was the plaintiff guilty of such negligence as contributed to his injury as should prevent him from recovering?

It appears from the opinion of the court that there was a rule of the street car company for which the plaintiff operated its car; that no car should run at a higher rate of speed than three miles an hour in crossing a street. There was also a rule that, when a car was standing on the opposite side of a street which was being approached, the car approaching should not cross, but should stop and wait until the standing car had crossed over.

The plaintiff’s evidence is to the effect that he was running at about 12 or 13 miles per hour until he was within 20 feet of Swiss avenue, and about 3 miles per hour when his car crossed the avenue. When the collision occurred, the front of his car was crushed, which would justify the conclusion that Bogue was mistaken as to the speed at which the car was moving when the collision occurred. When the car was running three miles per hour, it could not produce such result. But he says he saw the north-bound interurban car standing on the south side of Swiss avenue, and the rule by which he should have been governed required that he should come to a stop, and remain until the interurban car had passed. Bogue disobeyed that rule, and proceeded to cross the street, whereby he was injured.

The disregard of the requirements of that rule of his company was negligence, as a matter of law, and the Court of Civil Appeals correctly reversed the judgment of the trial court, and, under the undisputed evidence, properly rendered judgment for the street car company. It is therefore ordered that the judgment of the Court of Civil Appeals be and it is hereby affirmed, and that the defendant in error recover of Bogué all costs in all courts.

Affirmed. 
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