Northern Texas Traction v. Weed , 297 S.W. 534 ( 1927 )

One of the defenses specially pleaded by the defendant company was Miss Weed's alleged failure before reaching the crossing to keep such a lookout as a person of ordinary prudence would have kept under the same circumstances to discover whether or not a street car was approaching the crossing, and but for which failure the accident would not have happened. Special issue No. 19 in the court's charge was the only one in which the court attempted to submit that issue to the jury. That issue reads as follows:

"Under all the facts and circumstances shown by the evidence, did Katherine Marguerite Weed, in operating the Cadillac automobile, at the time and upon the occasion in question, keep a lookout for defendant's north-bound car, as she approached the track of defendant and at the time of and just prior to the collision? Answer: Yes."

In the opinion of the writer such submission of the issue was clearly subject to the objection urged to it by defendant at the time, to the effect that it failed to require a finding as to whether or not in approaching the crossing Miss Weed kept such a lookout for the approach of a street car to the crossing as a person of ordinary prudence would have kept under the same circumstances. It will be observed that the only finding required by special issue No. 19 was whether or not, as she approached the crossing, Miss Weed kept a lookout for a street car on defendant's track. The jury could have made an affirmative finding on that issue if any kind of lookout was kept, regardless of whether or not it was such as that a person of ordinary prudence would have kept under the circumstances. The objection was specially pertinent in view of Miss Weed's statement that she looked down the track to the south before she reached the crossing as far as she could see, and that the next time she looked south she was within 10 feet of the track and then saw the street car approaching so near that she was unable to avoid the collision, and her further testimony that, "I guess if I had looked after I drove out there to where I could see down Main street, if I had looked at any time after I took the first glance, and up until I got within 10 feet of the track, I guess I could have seen the street car. There was nothing in the street there to have prevented me from seeing it" — and in view of other testimony tending to show that as she approached the crossing she was engaged in a conversation with other persons riding in the rear of the car towards whom her face was turned at the time.

Hence the writer is of the opinion that the assignments of error addressed to the insufficiency of special issue No. 19 for the reasons already noted and to the refusal of the court to submit appellant's requested special issue, or the same issue in some proper form on the same defense, should be sustained. Fox v. Dallas Hotel Co., 111 Tex. 461,240 S.W. 517, and authorities there cited; Armour v. Morgan, 108 Tex. 417,194 S.W. 942; Campbell v. Johnson (Tex.Com.App.) 290 S.W. 526; Gammage v. Gamer Co. (Tex.Com.App.) 213 S.W. 930. And if the requested instruction was not in proper form, nevertheless the same operated as a request for a proper submission of the same issue. Kirby v. Estill,75 Tex. 484, 12 S.W. 807; Gulf, C. S. F. R. Co. v. Hodges,76 Tex. 90, 13 S.W. 64; Freybe v. Tiernan, 76 Tex. 286, 13 S.W. 370; Tex. Ref. Co. v. Alexander (Tex.Civ.App.) 202 S.W. 131.

By proper assignments of error appellant presents the contention that the judgment of the trial court cannot be supported by the findings of the jury in answer to special issues Nos. 12, 13, and 14, to the effect that the motorman in charge of the street car, just prior to the collision, discovered Miss Weed's perilous position in time to have avoided the collision by the exercise of ordinary care, and that his negligence in failing so to do was the proximate cause of the collision, since such findings are in irreconcilable conflict with the findings in answer to issues Nos. 4, 5, and 6, to the effect that the motorman did not exercise ordinary care to keep a lookout to discover the approach of the automobile to the crossing in question, and that such failure on his part was a proximate cause of the collision and the injuries in question resulting therefrom.

Issues 12, 13, and 14, referred to above, with their answers, are as follows:

"12. * * * Did the motorman operating the street car in question discover the perilous position, if any, of Katherine Marguerite Weed and the car she was driving? Answer: Yes.

"13. * * * Did the motorman operating the street car in question after discovering, if he did, the perilous position, if any, of the said Katherine Marguerite Weed and said automobile, in the exercise of ordinary care, consistent with the safety of said street car and its occupants, use all the means at hand to prevent the collision and injuries in question? Answer: No.

"14. * * * Was such failure, if any, the proximate cause of the collision and injuries in question? Answer: Yes."

And issues 4, 5, and 6, with their answers, are as follows:

"4. Under all the facts and circumstances shown by the evidence, did the motorman in charge of defendant's north-bound street car, at the time and upon the occasion of the collision in question, exercise ordinary care to keep a lookout to discover such automobile as might be approaching defendant's east car track? Answer: No.

"5. * * * Was such failure, if any, negligence, if any, as that term is defined to you? Answer: Yes.

"6. * * * Was such negligence, if any, a proximate cause of the collision and the injuries in question? Answer: Yes."

The writer is of the opinion that those assignments should likewise be sustained. The only means by which the discovery of the approaching car could have been made would have been by keeping a lookout: and the finding of the jury that the motorman did not keep such a lookout is equivalent to a finding that he did not see the Cadillac car in time to avoid the collision, by the exercise of ordinary care. Manifestly, that finding was in conflict with the findings in answer to issues 12, 13 and 14, noted above, to the effect that he did make such discovery in time to avoid the accident by the exercise of ordinary care. Moore v. Moore,67 Tex. 293, 3 S.W. 284; Northern Texas Traction Co. v. Armour (Tex.Com.App.) 288 S.W. 145; Williams v. Zang (Tex.Com.App.) 279 S.W. 815; Stewart v. Schaff (Tex.Civ.App.) 269 S.W. 135.

In Moore v. Moore, 67 Tex. 296, 3 S.W. 284, 286, our Supreme Court, speaking through Justice Gaines, said:

"The verdict must find all the issues made by the pleading in language which does not admit of mistake. It should be the end and not the continuation of the controversy."

It the jury had found that Miss Weed failed to keep such a lookout for the approach of a street car as a person of ordinary prudence would have kept under the same circumstances, and that but for such failure the collision would not have occurred, such a finding would have precluded a recovery based on one or both of the further findings to the effect that the motorman was guilty of negligence in operating the street car at the rate of 30 miles an hour, and that he was also guilty of negligence in failing to sound the gong as he approached the crossing at such a distance as would have apprised Miss Weed of the street car's approach, and that each of such acts of negligence was a proximate cause of the collision and the resulting injuries.

Hence, with such a finding of contributory negligence on the part of Miss Weed, the only ground upon which a recovery could be based would be a finding of negligence on the part of the motorman after he discovered the perilous situation, and which negligence was the proximate cause of the accident.

Accordingly, the writer is of the opinion that appellant's motion for rehearing should be granted, and that the judgment of the trial court should be reversed and the cause remanded.