The Citizens Railway Company v. Isham Ford, 93 Tex. 110

BROWN, Associate Justice. The Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the following statement and questions: “Appellee, as plaintiff, sued appellant, as defendant, for damages for personal injuries, and recovered a judgment from which the defendant has appealed. According to the averments in the plaintiff’s petition, the defendant is engaged in the business of running and operating street ears by electricity for the conveyance of passengers in the city of Waco. “The injuries complained of were inflicted upon the plaintiff’s wife, Mattie Ford.

The testimony shows that while crossing Fourth Street, in the city of Waco, the plaintiff’s wife was struck by a street car owned and operated by the defendant. She was knocked down and seriously injured. “The plaintiff’s petition charges the defendant with negligence in general terms and also with running the car with which she collided at a rapid and unlawful rate of speed, failure to ring the bell or give any other warning of the approach of the car. The plaintiff also pleaded

article 299,

chapter 33, of the city ordinances of the city of Waco, entitled ‘Streets, alleys, and sidewalks,’ which

article is as follows: “ ‘Streets, Alleys, and Sidewalks. — On all crossings over the streets and alleys of this city from one pavement or sidewalk to another, preference shall be given to pedestrians, and it shall be the duty of any person riding or driving on any of said streets or alleys to check up or even halt, if necessary, when they approach such crossing, if persons on foot be passing thereon, so as not to obstruct, hinder, or endanger such foot passengers or pedestrians on any such crossing.’ “The defendant specially excepted to so much of the plaintiff’s petition as set up this ordinance, upon the ground that it was not applicable to street cars.

The District Court overruled this exception, and, over the same objection, admitted the ordinance in evidence, and instructed the jury that under the ordinance referred to, pedestrians have a superior right to the use of the crossings of streets. This charge and the ruling aforesaid are assigned as error by appellant.

The date of the ordinance and time of construction of the street railway are not alleged or proved. “With the foregoing statement and explanation, the Court of Civil Appeals, acting through its Chief Justice, certifies to the Supreme Court for decision the questions thus presented in this court, viz: Does the city ordinance referred to have application to this case, and did the trial court, in the matter above stated, rule and charge correctly?

In other words, stating the question abstractly, does the ordinance referred to apply to street cars operated by electricity and require them to check up or halt, if necessary, when they approach such crossings, if persons on foot be passing/ etc?” The words, “riding” and “driving” are' of common use and must be taken and construed according to their ordinary signification. Suth. on Stat. Cons., sec. 339.

The use of the words in the disjunctive form shows that it was intended to designate by each a different act; “person riding” must travel in a manner different from the “person driving.” Each person must be in control of the means by which he is moving, because the ordinance requires him “to check up” or “halt,” which could not apply to one riding in a vehicle under the control and management of another. Webster defines the words “ride” and “drive” as follows: “Ride.” (1) “To be carried on a horse or other animal or in any kind of vehicle or carriage.” (3) “To be carried or travel on horseback.” <£Drive.

To go or pass in a carriage.” It will be seen that “ride” in its broadest meaning includes “drive,” but, as used in the ordinance before us, it is evident that this was not intended, because each class of persons must do one of two things different in their character, and, when taken in connection with the context, it is apparent that the words were used in their more limited sense; that is, the phrase “any person riding” was intended to designate one traveling upon “a horse or other animal,” while “any person driving” points out one “passing in a vehicle” under his own control.

The rule of construction is to ascertain the intent of the lawmaker, and, applying this rule to the language used, we think the motorman of a street car was not intended to be included in the phrase “any person driving.” To justify the application of the ordinance to street cars, it is not sufficient that the words might be construed so as to embrace motormen on street cars, but the language, as ordinarily used, must point them out as persons to be affected with such certainty that, upon reading it, they would understand obedience to its mandates to be required of them.

We answer the question, that street cars are not embraced in the terms of the ordinance submitted.