Ablon v. Electric Express & Baggage Co.

• Decision Date: 19 October 1918
• Docket Number: (No. 7918.)
• Citation: 206 S.W. 717
• Parties: ABLON v. ELECTRIC EXPRESS & BAGGAGE CO.
• Court: Texas Court of Appeals

206 S.W. 717

ABLON v. ELECTRIC EXPRESS & BAGGAGE CO.

(No. 7918.)

Court of Civil Appeals of Texas. Dallas.

October 19, 1918.

Rehearing Denied November 16, 1918.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by Morris Ablon, by next friend, against the Electric Express & Baggage Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Etheridge, McCormick & Bromberg, of Dallas, for appellant.

Harry P. Lawther, of Dallas, for appellee.

TALBOT, J.

The appellant, a minor about 18 years of age, sued by his father, as next friend, to recover of appellee damages sustained as the result of personal injuries alleged to have been received by him through the negligence of a driver of an express wagon of appellee while transporting over the streets of Dallas several coops of turkeys. The negligence alleged was driving the two horses hitched to the wagon at a greater rate of speed than permitted by an ordinance of the city, and as a consequence a collision of the vehicle with a telephone post in the curb at or near a street intersection, thereby throwing the appellant, who was sitting on the coops, to the brick pavement with such force that his right hand, arm, shoulder, and leg were seriously injured. The defenses were a general demurrer, a denial that the driver was in the employ of appellant at the time of the accident, a denial that he was driving in excess of the speed limit prescribed by the city ordinance, and that appellant was guilty of contributory negligence. The appellant was charged with contributory negligence: (1) In that he negligently took his seat at the rear end of the wagon in question, upon the top of the coops or crates of turkeys, which had been loaded in the end of said wagon, sitting upon them sideways while in transit; (2) that in loading the wagon and adjusting the endgate thereof appellant negligently failed to raise the endgate at an angle, so that the crates which were put in the end of the wagon would be on an incline towards the wagon, but carelessly allowed "said endgate to rest upon a level, the level being lower than the bottom of the wagon which permitted said crates to work to the rear as the wagon was being driven over the streets"; (3) that appellant failed to fasten the crates to the wagon with a rope; (4) that, if the driver of the wagon was driving at too great a rate of speed, the same was known to appellant, and appellant failed to make any objection thereto, and "negligently failed to direct the driver of the wagon to go slower"; (5) that appellant was so situated upon the top of the crates at the rear of the wagon "that he could have held himself on simply by grasping with one hand the stave at the corner of the wagon, but that at the time of the collision with the telephone pole" he had either negligently failed to grasp the stave and top of the wagon, or negligently upon said collision jumped from his place on the wagon to the pavement below. It was further alleged that the striking of the telephone pole was an accident not reasonably to have been foreseen as the probable result of the acts of the driver of the wagon.

The case was submitted to the jury on special issues, and all of them, except issue No. 3, were answered favorably to the appellant. The jury found, among other things which we deem unnecessary to state, that the driver of the wagon, Leggett, was guilty of negligence as charged in the plaintiff's petition, and that his negligence was the proximate cause of the injury sustained by appellant; that the driver, Leggett, delivered the turkeys in question in the course of his employment with the appellee and at the instance of appellee. Issue No. 3 was as follows:

"Was the plaintiff, Morris Ablon, guilty of negligence proximately causing or contributing to said injuries?"

To this question the jury answered "Yes," and upon motion of the defendant, appellee here, judgment was rendered in its favor. Appellant's motion for a new trial having been overruled, he perfected an appeal to this court.

The assignments of error from the first to the eleventh, inclusive, are grouped in the brief, and challenge the sufficiency of the evidence to support the jury's finding on issue No. 3, which finding, as we have seen, is that appellant, Morris Ablon, was guilty of negligence proximately causing or contributing to the injuries sustained by him. The appellee objects to a consideration of these assignments on the ground that as the case was submitted upon special issues, and the appellant made and filed no objections to the submission of the issue of contributory negligence, "he waived any objections to the insufficiency of the proof upon that issue." In support of this contention appellees cites articles 1970, 1971, 1973, 1974, and 2061, Vernon's Sayles' Ann. Civil Statutes 1914. We do not believe the objections are well taken, and the assignments of error will be considered. By motion for a new trial filed in the district court appellant complained of the insufficiency of the evidence to support the jury's finding on the question of contributory negligence, and asked that such finding be set aside and a new trial ordered. This we think entitles appellant to a consideration of the assignments of error (which were the assignments in his motion for a new trial), and a review by this court of the sufficiency of the evidence to support the finding in question. To this effect is the ruling of this court in Winnsboro Cotton Oil Co. v. Carson, 185 S. W. 1002. See, also, Railway Co. v. Black, 176 S. W. 755. Besides, this court has held, in effect, that the articles of the statute relating to the filing of objections and exceptions to the giving and refusing of charges, when the case is submitted on a general charge, do not apply, when the case is submitted on special issues, to the giving of such issues. Shaw v. Garrison, 174 S. W. 942. In that case it was said, in substance, that submitting special issues of fact for the determination of the jury, or refusing such submission, is in no sense the giving or refusing to give a special charge, and hence in no respect controlled by the particular provisions of the amended statute of the Thirty-Third Legislature (Acts 33d Leg. c. 59).

The appellee's plea of contributory negligence, as we have shown, was based on several alleged grounds of negligence on the part of the appellant; but it cannot be told from the record before us whether the jury believed and found that appellant was guilty of such negligence in all, or only in some one or more, of the particulars charged, and, if only in some one of the particulars charged, which one. They were simply asked, "Was the plaintiff, Morris Ablon, guilty of negligence proximately causing or contributing to his injuries?" And they answered, "Yes." By separate and specific propositions, made under the assignments of error we are considering, appellant insists, in effect, that the trial court should have set aside the finding of the jury on the question of contributory negligence, because reasonable minds, considering all of the testimony in the case, could not differ as to the ultimate fact that the appellant, Morris Ablon, was free of negligence in either of the several particulars charged, which have been stated in a former part of this opinion, and would necessarily have reached the conclusion that he was free of any negligence whatever proximately causing or contributing to the injuries which the jury found he sustained. The jury found, upon testimony warranting it, that Leggett, the driver of the wagon in question, was in the employ of and under the control of the appellee at the time of the accident resulting in injury to Morris Ablon, and that the delivery of the coops of turkeys loaded on the wagon was being made by him at the instance of and under the direction of his employer. The question, then, for our determination, is Does the testimony conclusively show that appellant was not guilty of negligence in any of the particulars charged which proximately caused or contributed to his injuries?

We have carefully read and re-read all of the testimony in the record bearing upon the question, and have reached the conclusion that the question must be answered in the affirmative. The testimony bearing upon the question of contributory negligence is that of the appellant, Morris Ablon, and the driver of the wagon, L. J. Leggett. It is too voluminous to be copied in detail in this opinion; therefore only so much of it as we deem necessary to show the correctness of our conclusion will be copied or stated. The father of Morris Ablon, the appellant, was anxious to have the turkeys delivered to him on the night of...