Thurmond v. Pepper , 119 S.W.2d 900 ( 1938 )

On Motion for Rehearing. We have carefully considered appellants' motion for rehearing.

On submission their principal contention was that, regardless of the original cause of deceased's perilous situation, there was sufficient evidence to go to the jury that both appellee Pepper and appellee Gladden discovered his peril in time to have avoided injury to him by the exercise of ordinary care, in the use of the means at hand, consistent with their own safety. So our original opinion dealt largely with that contention. We do not understand that appellants seriously contended that there was any evidence to raise the issue of primary negligence on the part of appellees. And on the issue of discovered peril a plaintiff must establish not merely that the defendant ought to have known or discovered the peril, but that he actually perceived it. Texas P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410. Whether appellee-drivers ought to have discovered deceased's perilous situation would have been pertinent only on an issue of primary negligence. In practically every case of injury the danger of its happening is discovered before it actually happens. The crucial issue in cases where it is claimed that the principle of discovered peril is involved is the time when the peril was discovered. In order for appellants to have raised the issue of discovered peril as against appellees they would have had to show that Pepper and Gladden had no reason to believe that deceased could or would free himself from the impending injury. Horwitz v. Jefferson County Traction Co., Tex. Civ. App.188 S.W. 26, at page 29, writ denied. There was no evidence to show that Pepper could have had reason to believe that deceased could not free himself from danger of a collision until his (deceased's) truck began to turn in on Pepper's side of the road, when the trucks were from 75 to 50 feet apart.

Appellants take grave exception to that portion of our former opinion in which it is stated that self-preservation is the first law of nature, and that what a man does to defend himself from serious injury is justified by his good faith, and that Pepper did all he knew how to do to avoid a collision. We were trying to show that in our opinion the collision was unavoidable from and after the instant Pepper discovered deceased's peril and that he would not likely free himself from it. In doing this we merely called attention to the fact that the powerful motive of self-preservation operated on Pepper to do all in his power to avoid a collision which threatened as grave injury to himself as it did to deceased. Appellants had cited cases in none of which, as we remember, the motive of self-preservation was present and operating on the defendant (or agent of defendant) to insure that he would do all in his power to deliver the plaintiff from threatened danger, because to do so would be to escape it himself. Through no fault of his own, Pepper was placed in sudden peril. We doubt very much if the law imposed upon him the obligation to act with that degree of care and prudence which it imposes on a person not subjected to sudden peril. Graham v. Hines, Tex. Civ. App. 240 S.W. 1015, writ refused. But we concluded that, as a matter of law, there was no evidence to raise the issue that Pepper failed to exercise that degree of care which a person of ordinary prudence would have exercised under the same or similar circumstances. What has been said implies also with reference to the collision of Gladden with deceased.

Motion overruled.

PLEASANTS, C. J., absent.