On Motion for Rehearing.
In the motion for rehearing presented by appellee, the opinion of this court, reversing the judgment of the court below and rendering judgment for appellants, is vigorously assailed, and we deem it proper to answer some of the objections urged against our conclusions both of law and fact.
The question of whether the operation of interurban electric cars along Jackson street imposes an additional burden upon the street, in the sense that it is an appropriation of the street for purposes and uses not contemplated in its dedication, is a question of law, and this court is therefore not bound by the conclusions of the trial judge on such question. We do not understand learned counsel for appellee to contend otherwise. We cannot, however, make a finding of fact contrary to the finding of the trial court, if there is any conflict in the evidence upon such fact issue. If reasonable minds could differ in the fact conclusions to be drawn from the evidence, the appellate court must adopt the finding of the trial court, unless such finding is against the overwhelming weight of the evidence, in which case the appellate court, while it cannot substitute its findings for that of the trial court and rénder judgment thereon, is authorized to reverse the judgment and remand the cause for a new trial.
No conclusions of fact were filed by the trial judge, but we must presume that every fact which there was sufficient evidence to support and which was necessary to sustain the judgment was found by him.
One of plaintiff’s witnesses testified that an electric car of appellant company running along Jackson street “made more noise than would be made by a steam train.” Another of plaintiff’s witnesses made the statement, in regard to the speed of the interurban cars, that they “ran like a streak of lightning”; and another testified that the vibration caused by these cars was “terrible.” If we could presume that the trial court found these apparently unreasonable statements were true, it is, we think, clear, in view of the undisputed evidence as to the size of the cars, the number which are run together as a train, the facts that they are run over- the' tracks used by the street car company and their speed is limited by the city ordinance to that of the street cars, that the excessive noise and vibration described by the witnesses was due to the Unlawful and negligent operation of the ears and could not result if the cars were operated with proper care and in accordance with the city ordinance, and that the only reasonable conclusion to be drawn from the whole evidence as to the necessary noise and vibration caused by the running of the interurban cars when they are not operated in a negligent manner is that stated in our former opinion.
Plaintiff would have a remedy for any injury it may have sustained because of the noise and vibration of the interurban cars due to the unlawful or negligent manner of their operation, but no such claim is asserted in this suit. The prayer of plaintiff’s petition is not accurately stated in our former opinion. The prayer is as follows:
“Wherefore plaintiff brings this action, and prays citation to defendants, and that on hearing it have judgment for the title to and possession of said promises, subject only to the right of the public to use said second tract for ordinary street and highway purposes, that is, for ordinary travel thereon, and not for the uses which defendants have made-or are making thereof, as hereinbefore alleged, and for its damages, that is, the rental value aforesaid, and— until a. writ of possession herein shall be executed — enjoining and restraining the defendants from using the same for any purposes except for ordinary travel thereon, and from using or operating thereon any ears for interurban railway purposes, or for freight or passenger or baggage purposes for travel between the cities of Houston and Galveston and any other points outside of said cities, and to and from any points whatever, and awarding a writ of possession, and for costs and general relief.”
It is clear from the petition that plaintiff does not sue for damages for the unlawful or negligent operation of the railway by defendants, but the suit is one in trespass to recover the title and possession of the property and the reasonable rental value of its use and occupancy by the defendants, and a temporary injunction was asked to restrain defendants from using the property pending a determination of the question of title and possession. It expressly • waived its claim for damages, and while the statement in our opinion, which was taken from appellants’ brief, that it waived its prayer for injunction, does not seem to be borne out by the record, the fact remains that its claim to injunction was based on its claim to the right of possession of the property occupied by the tracks of defendants, and not to prevent injury to plaintiff’s abutting property caused by the negligent operation of the railway. Our conclusion that the use and occupancy of the street by the defendants is not a taking of plaintiff’s property, disposes of its prayer for injunction. As before stated, if plaintiff’s property has been damaged or it hás suffered any injury by reason of the unlawful or negligent operation of appellant’s railway, it is entitled to recover for such injury, and the. judgment in- this suit will *333not be a bar to sucb claim. There is therefore no reason for remanding this ease in order to give appellee an opportunity to amend its petition and sue for damages caused by the negligent operation of appellant’s ears.
In response to the request for additional conclusions of fact, we find that our statement in the main opinion that the interurban passenger cars were 35 or 40 per cent, heavier than the cars used by the street car company is erroneous. The record shows that they are nearly twice as heavy.
Upon the question of the local service rendered by the interurban company, we add to our former findings the following: The ordinance under which the interurban company was granted the right to use the streets contains the following provision:
“Provided, however, that the Galveston-Houston Electric Railway Company shall be under no obligation to furnish such local service _ between points on said new tracks or extensions after the Houston Electric Company has undertaken to and is furnishing the same; and provided further, that through cars or trains of ears of the Galveston-Houston Electric Railway Company making through trips between Houston and Galveston, or between Houston and other points on the line of the Galveston-Houston Electric Railway Company shall not be required to render such local service.”
This provision of the ordinance granting the franchise must be read in connection with the provision in said ordinance, the substance of which is stated in our former opinion, and which is as follows:
■ “That if the local transportation service between points on the extensions of the lines of the Houston Electric Company as furnished by the interurban company shall prove at any time inadequate and insufficient, the city shall have the right to require and it shall be the duty of the Houston Electric Company to furnish adequate local service in going to and coming from points on said new tracks; and that until such local service is furnished by the Houston Electric Company, it shall be the duty of the interurban company to establish and maintain, at reasonable distances along said new tracks or extensions, within the city, stopping points for receiving and discharging passengers, and it shall likewise be the duty of the interurban company to stop its cars at such points to receive and discharge passengers; and it shall be the further duty of the interurban company to carry local passengers received at said points to any other point on the tracks of the Houston Electric Company in the city of Houston over which the interurban company may operate for the legally established rate for local street car service, and if the destination of such passengers be to some point in the city of Houston requiring a transfer, to furnish such transfer, and to recognize transfers of the Houston Electric Company issued under ordinances of the city, from points on the line of the Houston Electric Company to points on said new tracks or extension.”
When these two sections or provisions are construed together, it is manifest that the terms “through cars or trains of cars” and “through trips,” used in the provisions first quoted, mean special cars or trains of cars, and do not apply to cars on the regular schedule of the interurban company.
The section of the city from Sampson street to, the city limits, to and from which appellant furnished local transportation and is required to give and accept transfers to and from all street car lines in the city, is sparsely settled, having recently been taken into the city, and this local passenger traffic is only about 1 per cent, of its passenger business.
The purposes for which the street railway and the interurban railway were chartered are stated in our former opinion. Neither of said companies were chartered as car-' riers of freight or express. In our former opinion we say that “a train of two cars is sometimes run.” The evidence shows that four trains of two passenger cars are run every day, and that on Sundays ten or twelve trains of two passenger cars are run.
There was evidence that the noise made by the interurban cars was such that a person speaking in appellee’s building could not be heard at all in the opposite end of the building when an interurban car was passing. This court did not state as a conclusion of fact in our former opinion that appellant company only carried “light” express matter. We found the facts as to what it did carry and the manner in which the business was conducted. The evidence from which these facts were found is undisputed. Our conclusion is that .the facts shown by the undisputed evidence do not make appellant a carrier of freight as distinguished from a carrier of express. The question of whether the express matter carried was light or heavy is, we think, wholly immaterial, as only one light express car at a time was used in its transportation. We cannot conceive how it could damage plaintiff’s property more to have an express car, of the kind shown to be operated by appellant, pass along Jackson street conveying 10 articles weighing 1,000 pounds each, than it would to have such car carry 1,000 articles weighing 10 pounds each.
The statement in our former opinion as to the operation of the cars by the interurban company which was the defendant in the Mordhurst Case, cited and quoted from in our former opinion, is inaccurate in so far as it implies that the railway in that case was in operation at the time the suit was brought. The suit was brought before the railway began operation, and the character of the railway discussed in the opinion in that case was determined by the provisions of its charter and the ordinance granting its franchise. We do not think this in the least affects the force of that opinion as authority in this case.
We have carefully considered the motion for rehearing, and feel constrained to adhere to the conclusions expressed in our former opinion. It follows that the motion. should be overruled, and it has been so ordered.
Overruled.