El Paso Electric Co. v. Hedrick , 39 S.W.2d 128 ( 1931 )

I cannot agree with my brethren in the holding that the question of unavoidable accident is not raised by the evidence.

In the recent case of El Paso Electric Company v. Francisco Portillo,37 S.W.2d 219, we held that the issue of unavoidable accident was raised by the evidence, and the writer is unable to distinguish between the facts there and those present here.

The action of the Supreme Court in granting writs in the cases of Railway v. Garrison (Tex.Civ.App.) 30 S.W.2d 1108, 1109, and Railway v. Darden (Tex.Civ.App.) 23 S.W.2d 739, has left some doubt as to just when the issue is, in their opinion, raised by the evidence.

In the first case, which was one involving a collision between a street car and an automobile at an intersection, the jury found that both the motorman and the driver of the automobile were guilty of negligence. The Court of Civil Appeals, in discussing the question, said: "Unavoidable accident, however, in the nature of things, precludes the presence of negligence as a proximate cause. And where the evidence conclusively shows negligence on the part of both parties to a collision, and that the cause of same is well known, as was true in this case, no issue of unavoidable accident is raised, and it is not error to refuse to submit it to the jury."

Judging by the notation made by the Supreme Court, it granted a writ on the ground that the Court of Civil Appeals was in error in holding that the evidence did not raise the issue. The evidence in the second case fully explained the manner in which the collision occurred, and the Supreme Court granted a writ in that case because the Court of Civil Appeals had held that a charge placing the burden of proof upon the defendant upon the issue of accident was harmless.

Albert Mayo, a witness for the defendant, testified that he was a passenger on the street car and standing just behind the motorman at the time of the collision. He further testified as follows: "I did not see the motorcycle until the crash came, and he (referring to the motorman) did not see it either. There was a car coming west on Hueco that kept him from seeing it. It was right in front of the street car at the intersection there. The automobile turned there and went south on Copia. It turned before the motorcycle. I never did see the motorcycle until it broke out from some place. I saw the automobile coming, but I did not see the motorcycle, never did see it. The automobile was at about where people walk across the street when I saw it, it was about where the stop sign is. I saw it turn south on Copia. The car must have been ahead of the motorcycle because I never did see it. The first I knew of the motorcycle was when it hit. The motorman never saw the motorcycle."

Walter Hudson, the motorman, testified: "When I just got started going around I saw an automobile coming down Hueco, going west, and he pulled up and turned south in Copia. I just fed on around, kept going, and when I got around, the front end about even with the north track why I heard a racket of — well, I didn't know what — and I glanced around and caught the headlight coming west to my right, and I stopped as quick as I could. When I first saw the motorcycle headlight it was five or six feet from me, and he just swings into the door, he hit the rear door in the front end and just slid on back by the side of the car to the read end. * * * After I heard this noise and saw this motorcycle there was not anything I could have done to stop my car any quicker. There was not a thing on earth I could have done to have gotten out of his way after I saw this motorcycle."

John R. Hedrick, Jr., appellee, testified: "I got within about ten feet of the intersection of Hueco and Copia, and a Fort Bliss street car swung around the corner there, and I seen it coming around, it was going to swing to the left and I swung to my left to miss it. I was on the street car when it stopped, — right up to it. Whether it went ahead then or not I would have hit it. If it had continued to move I would have hit some portion of the street car. * * * I knew that the Government Hill cars and Fort Bliss cars came along there quite frequently, and that the Fort Bliss car turned north to go to Fort Bliss. * * * Sometimes the Fort Bliss car did not stop there at Copia but now they have to because they made Copia a stop street. They have to stop to throw the switch there. I knew he had to stop there. * * * I did not notice the street car. I was watching out for street cars. I thought it was just slowing up there as I was going down the street. There was not anything to interfere with my vision. I had a clear vision to the west. * * * I was about ten feet from the street car when it started up. I did not notice it until it got right there."

In deference to the action of the Supreme Court in the cases above referred to, and in conformity with our holding in the Portillo Case, supra, the writer feels constrained to hold that this evidence is sufficient to raise the issue of unavoidable accident, and that the case should be reversed and remanded because the issue submitted failed to place the burden as to such issue on appellee.