San Antonio Traction Co. v. Court , 31 Tex. Civ. App. 146 ( 1903 )

The pleadings form a sufficient basis for the evidence introduced. There was no objection interposed to the evidence, and appellant did not claim surprise at the evidence showing that the child was injured at a point perhaps forty feet from St. Mary's street when the petition alleged that it occurred at the crossing. If appellant was misled by the allegations in the petition as to where the child was hurt, it should have asked the court to allow it to withdraw its announcement and continue the case. Brown v. Sullivan, 71 Tex. 470. There was in fact no material variance between the allegations and proof. One witness located the accident about forty feet from St. Mary's street. Another said he got on the car about the middle of St. Mary's street, and that the car was stopped about thirty-five feet from where he got on. The car was not stopped until after the child had been injured. The gist of the action was negligently running over an infant on the streets of a city.

It is contended that the facts do not indicate that the car was moving slowly at the time the child was struck. One witness swore: "The car was going very slow, about as fast as a man could walk; just then the car struck the child." Another witness swore: "The car was not going fast; it was running at an ordinary speed. I wasn't paying any attention to the speed of the car." Another witness swore that he got on the car just across St. Mary's street from where the child was injured and stated: "When I got in and went to my seat the car was going very slow." These were the only witnesses as to the speed of the car, and it is apparent that this court is justified in finding that the car was moving slowly when the child was struck.

The evidence is sufficient to establish that if any care had been exercised by the motorman he would have seen the child before it got on the track, and that even after it got on the track, about twelve feet ahead of the car, it could with proper diligence have been stopped before it struck the child. This is not a case of a child springing suddenly on the track in front of a moving car, but is one in which the child moved along the track and then went obliquely on it about twelve feet from the car. The evidence tends to show that the motorman was not looking along the street, where he should have looked, but was either absorbed in a conversation or looking towards the sidewalk.

There is no merit in the motion for rehearing, and it is overruled.

Overruled.

Writ of error refused.