Seinsheimer v. Burkhart , 93 S.W.2d 1231 ( 1936 )

I cannot agree with my associates in the disposition made of this appeal, and in obedience to the statute present as briefly as I may this statement of the grounds of my dissent.

I think the twenty-third finding of the jury, set out in the opinion of the majority, "that Miss Burkhart did attempt to cross Walker Avenue by walking over a portion of the street not included within the lines of the sidewalk" defeats her right to recover in this suit. The evidence is amply sufficient to support this finding, and the undisputed evidence shows that in so attempting to cross the street she violated an ordinance of the city of Houston, and therefore was negligent as a matter of law. It cannot be held that the further finding of the jury that this act of the plaintiff "did not proximately cause or contribute to her injury" has any support in the evidence. It may be said that it is a physical impossibility for this negligent act of the plaintiff not to have contributed to her injury. If she had not been where she was when she was struck by the automobile, she would not have been struck. The authorities are numerous upon the proposition that when the evidence on a controlling issue in a case is such that reasonable minds cannot differ in the conclusion to be drawn therefrom, the court should instruct a verdict in accordance with the only reasonable conclusion that can be drawn from the evidence, and a finding of the jury against the conclusion so supported by the evidence should be disregarded by the court. This being the well-settled rule of law, it follows that the trial court should have granted appellants' motion for an instructed verdict, and failing so to do, should have granted their motion to render judgment in their favor notwithstanding the verdict of the jury.

If the appellee had been caused to violate this ordinance of the city in an effort to protect herself from danger of injury suddenly thrust upon her by the negligence of the driver of the automobile, or if the driver of the automobile, after discovering her peril, failed to use proper care to prevent her injury, the liability of the driver for the damages caused her by his negligence would not be questioned, as her negligence would in such circumstances not be a proximate cause of her injury. But there is neither pleading nor evidence in this case of liability on either of these grounds. San Antonio A. P. Ry. Co. v. Biggs (Tex.Civ.App.) 283 S.W. 627; Austin v. Neiman et al. (Tex.Com.App.) 14 S.W.2d 794; Sabine E. T. Ry. Co. v. Dean, 76 Tex. 73, 13 S.W. 45; Blakesley v. Kircher (Tex.Com.App.) 41 S.W.2d 53; Koock v. Goodnight et ux. (Tex.Civ.App.) 71 S.W.2d 927.

I do not think any of the cases cited in the opinion of the majority on the general proposition that the negligence of a plaintiff in violating an ordinance or statute will not defeat his right to recover for injuries negligently caused him by the defendant, when the evidence shows that the negligence per se of the plaintiff did not contribute to his injury, are applicable to this case. The soundness of the proposition cannot be doubted, and is not questioned by appellants, their contention being that the physical facts shown by the undisputed evidence in this case were such that reasonable minds cannot differ in the conclusion that the negligence of plaintiff contributed to her injury. The evidence conclusively shows that the pedestrians who were standing on the corner waiting to cross within the lines prescribed by the ordinance did not enter the street until the defendants' automobile had passed them. If plaintiff had not violated the ordinance enacted for her protection, she certainly would not have been struck by defendants' automobile.

I also agree with appellants that there was no evidence to authorize the submission of appellee's claim for damages against Mr. and Mrs. Joe Seinsheimer. The trip from Galveston to Houston was not made as a joint enterprize. Each of the occupants of the car desired to go to Houston for separate, individual purposes. J. F. Seinsheimer, Jr., wanted to attend an entertainment on the roof garden of the Rice Hotel and take his friend, young Flood, with him. His aunt, Miss Emma Seinsheimer, suggested to him to ask his grandmother if she would go and use her car. The grandmother, wanting to consult a physician in Houston, agreed that they would all go to Houston in her car. It seems that Miss Emma went for the purpose of doing some shopping. After the party reached Houston Miss Emma was left where she wanted to do her shopping, and Mrs. Seinsheimer was taken to the Esperson building in which the office of her physician was situated. When the important members of the party were so deposited, young Seinsheimer asked his grandmother if he could use her car to go for his friend Sam Miller, whom the family well knew, and drive around the city with him. Mrs. Seinsheimer consented to his so using her car, and it having been previously agreed that all of them would lunch on the Rice Roof, she told her grandson to bring Miller with him for lunch. The undisputed evidence shows that at the time of the injury to plaintiff young Seinsheimer, Flood and Miller were returning from their drive about the city and on their way to get Miss Emma and Mrs. Seinsheimer and take the party to the Rice Roof for lunch. I do not think that these facts show, or tend to show, that at the time of the accident in which appellee was injured, Mrs. Seinsheimer and her grandson and young Flood were engaged in a joint enterprise. Young Seinsheimer had possession of the car for his own use and pleasure, and the mere fact that at the time of the accident he was on his way to get his aunt and grandmother and go with them to lunch on the Rice Roof, to which he and his two friends, Miller and Flood, were invited, did not place him or Flood in the position of agent or servant of Mrs. Seinsheimer at the time the accident occurred, and by the same token they and Mrs. Seinsheimer were not at that time engaged in a joint enterprise which would make each responsible for the negligence of the other.

Neither do I think the evidence raises the issue of negligence on the part of Mrs. Seinsheimer in knowingly intrusting her car to an incompetent operator. There is not a word of testimony tending to show that the grandson, J. F. Seinsheimer, Jr., was negligent or incompetent as a driver of automobiles. The only evidence tending to show that Mrs. Seinsheimer knew that young Flood was an incompetent driver was that at some point on the way from Galveston Miss Seinsheimer became nervous at the way young Flood was driving and because of her nervousness Mrs. Seinsheimer asked her grandson to take the wheel. No statement is made of any act of negligence or incompetence by young Flood, and Miss Seinsheimer explained her nervousness by saying she was not accustomed to his driving. Before the party reached Houston, young Flood again took the wheel and drove through the streets of Houston until he delivered Miss Seinsheimer and Mrs. Seinsheimer at their respective destinations, without, so far as the evidence indicates, showing any incompetence or negligence in operation of the car. He was 16 years of age at the time of the accident, had experience in driving cars, and, as before stated, the only evidence tending to show that Mrs. Seinsheimer knew that he was not a competent driver was the incident of Miss Seinsheimer's nervousness at one time on the road from Galveston.

The fact that the jury found upon conflicting evidence that Flood, the driver of the car at the time of its collision with appellee and her consequent injury, was negligent in proceeding against the signal lights on Walker avenue and in going at a higher rate of speed than that permitted by the city ordinance, is not sufficient to raise an issue of negligence on the part of Mrs. Seinsheimer in turning the car over to her grandson without instructing him not to permit Flood to drive it. There being no evidence sufficient to raise the issue of knowledge on the part of Mrs. Seinsheimer of Flood's incompetence prior to the collision in which appellee was injured, she cannot be charged with such knowledge because he may have been shown incompetent or negligent at the time of the collision.

If I am right in my above conclusions as to the contributory negligence of the appellee, the judgment should be reversed and rendered for all of the appellants. If my other conclusions as to liability of Mr. and Mrs. Joe Seinsheimer for the negligence of Flood are sound, judgment should in any event be rendered in favor of Mr. and Mrs. Joe Seinsheimer.

If none of the above conclusions are sound, I think the judgment should be reversed, and the cause remanded, because of the failure of the trial court to grant a new trial, on the ground that the findings of the jury upon each of the controlling issues in the case above discussed are so against the great weight and preponderance of the evidence as to be clearly wrong, and indicate that the jury must have been improperly influenced in making the findings.