Wm. G. Hale v. Pauline Dutant, 39 Tex. 667

Walker, J. This was an action originally brought by Armand Dutant and Pauline, his wife, against Chas. Still-man, Samuel A. Belden and William G. Hale, the owners of a ferry on the Rio Grande, at Brownsville, to recover damages for injuries received by the wife through an accident alleged to have been occasioned by the fault and negligence of the defendants. The defendants are sued as common carriers, and this is what, at common law, would have been an action on the -cáse for incidental damages.

The petition charges substantially that the defendants, in constructing and operating their ferry, had drawn a -wire rope across one of the public highways, by reason of which rope being carelessly arranged and operating as-an impediment to persons traveling on said highway, Pauline, one of the plaintiffs, had tripped and fallen over said wire rope, receiving great bodily harm and injury, to the-loss and damage of the plaintiffs $10,000.

The defendants in their pleadings deny generally the-allegations of the petition, and they plead specially, admitting themselves to be the owners of the ferry franchise, but they aver that before the happening of the-accident they had leased, rented and transferred to oneMarcello Perez the ferry, with all the boats, ropes, cable, tackle, and appurtenances to the same belonging. That they had ceased to operate said ferry at the time-of the accident, and that the same was under the sole-management and control of said Perez, and they denied their liability, admitting the facts touching the accident to be true.

The plaintiffs moved to strike out this answer, and rely for the recovery solely upon the ownership of the ferry by the defendants. Certainly the authorities quoted in the. defendants’ brief (Blackwell v. Wiswall, 24 Barb., 356, S. C.; 26 Barb., 618; Felton v. Deall, 22 Vt., 173; Blake v. Ferris, 1 Selden, 51; Murch v. Concord R. R. Co., 9 Foster, N. H., 32; Fisk v. Farmingham Man. Com., 14 Pic., 493; Blatenburger v. Schuylkill, etc., 2 Miles, Penn., 313; Peachy v. Roland, 76 Eng. Com. L. R., 181) are conclusive on this subject, and the maxim respondeat superior does not apply in cases like this.

The second branch of the charge of the court reads as follows: “If the defendants, Stillman, Beldin & Hale, were the owners of the ferry, and the wire rope, a part and parcel ’ of the ferry, was extended across a public street or highway in this city, or into any part of said street, so as to-obstruct its free use to the public, they are held in law to be responsible for any and all damages happening, because of such obstruction, to persons traveling the streets so obstructed, unless the injury or damage is caused by the willful neglect of the party injured.” This charge of the court is erroneous in two respects ; negligence on the part of the party injured need not be willful or gross in order to excuse a party, who may be in some respect the cause of the injury, from liability ; partial negligence may excuse; the party injured is certainly bound to as high a degree of care to avoid the -accident as he through whose negligence an accident might otherwise happen; the whole and entire responsibility is not thrown upon the party from whom the damage is claimed.

The court erred in overruling this plea. The jury was doubtless misled by the charge, and there was error in refusing a new trial. The judgment of the District Court is therefore reversed and the cause dismissed. Reversed And dismissed. Hancock, West & North filed a motion and argument for rehearing. Overruled.