Airline Motor Coaches v. Caver

• Court: Texas Supreme Court
• Writing for the Court: GARWOOD; GRIFFIN
• Citation: Airline Motor Coaches v. Caver, 148 Tex. 521, 226 S.W.2d 830 (Tex. 1950)
• Decision Date: 25 January 1950
• Docket Number: No. A-2350,A-2350
• Parties: AIRLINE MOTOR COACHES, Inc. v. CAVER.

Page 830

226 S.W.2d 830

148 Tex. 521

AIRLINE MOTOR COACHES, Inc. v. CAVER.

No. A-2350.

Supreme Court of Texas.

Jan. 25, 1950.

Rehearing Denied Feb. 22, 1950.

Thompson & Stripling, Nacogdoches, Strasburger, Price, Holland, Kelton & Miller, Dallas, Hobert Price, Dallas, for petitioner.

Fulmer & Fairchild, Nacogdoches, R. W. Fairchild, Nacogdoches, for respondent.

GARWOOD, Justice.

Petitioner, an inter-city motor bus carrier, seeks relief here from unfavorable judgments in both courts below in a suit against it by J. J. Caver, respondent, for personal injuries said to have been caused to respondent's wife in 1944 while a passenger on petitioner's bus by a portable radio of a fellow passenger which fell from an overhead luggage rack onto the head of Mrs. Caver. The case has been tried twice, the last trial leading to three opinions in the Court of Civil Appeals. Of these, the first two held there was no evidence to sustain the sole finding of negligence, while the final one held the contrary over the dissent of Chief Justice Coe. 222 S.W.2d 286.

The jury submissions on liability with the corresponding answers are as follows:

'Special Issue No. 2.

'Do you find from a preponderance of the evidence that defendant's bus driver was guilty of negligence in permitting the passenger to take such portable radio into the bus?

'Answer 'Yes' or 'No'.

'Answer: Yes.'

'Special Issue No. 4.

'Do you find from a preponderance of the evidence that defendant's bus driver knew that the portable radio had been placed upon the rack above Mrs. Caver's head in time so that he could have removed the same from the rack before it fell?

'Answer 'Yes' or 'No'.

'Answer: No.'

'Special Issue No. 7.

'Do you find from a preponderance of the evidence that the portable radio was upon the rack above Mrs. Caver's head for a sufficient length of time before it fell so that the bus driver by a reasonable inspection could have discovered it in time to remove it from the rack before it fell?

'Answer 'Yes' or 'No'.

'Answer: No.'

The jury also found the alleged injuries to have proximately resulted from the negligence found by its answer to Special Issue No. 2. As to this latter issue, which is the crux of the case, petitioner's timely objections to it for lack of supporting evidence, and petitioner's motions on the same ground for an instructed verdict and judgment notwithstanding the verdict were overruled. Petitioner raised the same question again in its unsuccessful motion for new trial, both directly and by complaint (in paragraphs 10, 11 and 12) of the court's action on the exceptions and earlier motions mentioned.

In the Court of Civil Appeals petitioner's only 'point' with regard to the foregoing-which is substantially the same as its corresponding point in this court-reads as follows: 'The error of the trial court in refusing to hold that as a matter of law it could not be negligence for the defendant bus company to permit a passenger to bring with him aboard the bus a small portable radio. (Germane to Assignments of Error Nos. 1, 2 and 3, par. 10, 11 and 12, Amended Motion for New Trial, Tr. 33-4)'

Respondent in the main presentation of the case below evidently construed this 'point' as presenting the question of lack of evidence to support the answer to Special Issue No. 2 and briefed his reply accordingly, but contended on the first motion for rehearing that the question was not adequately presented or briefed by petitioner and now asserts that we are accordingly forbidden to consider it. This contention was rightly rejected by the Court of Civil Appeals in so far as it applied to that court, and we reject it here. The argument is largely technical in that the alleged omission plainly did not interfere with a fair, complete or orderly development or consideration of the case from the standpoint of either the parties or the courts, but even technically we consider it not well taken. As before stated the motion for new trial raised the same question both directly and by clear reference in its paragraphs 10, 11 and 12, which are the same paragraphs included in its 'point' above quoted. It was not necessary for the 'point' itself to state in so many words that the jury finding was unsupported by evidence. Points 'will be sufficient if they direct the attention of the court to the error relied upon', and 'Assignments of error * * * may be cited by reference only.' Rule 418(b), Texas Rules Civil Procedure. 'A substantial compliance' with the briefing rules 'will suffice in the interest of justice.' Rule 422. See also Rule 1. As to the petitioner's brief below, while individual ideas may well differ over what is proper effort or method in briefing a question, this much at least is certain-that petitioner's counsel thought he was arguing the error of the trial court in overruling objections and motions expressly based on the ground of 'no evidence', that the court below so understood it and that respondent's reply brief proceeded as if on the same understanding. In our own view petitioner's brief did argue the point of no evidence, and beyond any doubt did it so as to effect 'a substantial compliance' with the corresponding rules. Rule 422, supra. None of our decisions or rulings cited for respondent are, we think, contrary to the conclusions above expressed.

Proceeding to the crucial question of whether there was evidence to support the finding of petitioner's negligence in permitting the radio to be taken on board, we have concluded that there was not.

The status of the evidence on the point may be summarized as follows: The bus in question was southbound from Marshall or thereabouts to Beaumont. At Tatum, which is a few miles out of Marshall, a soldier passenger, bound for Beaumont, came on board with a portable radio. This was long before the respondent's wife boarded the bus. She first boarded it at Kirbyville-which is over a hundred miles southwardly from Tatum. There is no evidence that the bus was crowded when the radio was brought on board at Tatum or at any time thereafter before it reached Kirbyville, though it was evidently crowded from Kirbyville onward. The appearance and conduct of the soldier was unexceptional, except that on being addressed by the driver, he addressed the latter by the nautical term 'Skipper' in replying. The evidence varied highly as to the size of the radio, the largest version being that of respondent Caver's witness, Mrs. Troutman, who called it a medium-sized radio about fourteen or fifteen inches 'square'. There was some evidence that it was made of plastic, and all agreed that it was of the 'portable' type. There was no evidence of any extraordinary characteristics of the article arising from its plastic cover or otherwise that might cause it to escape from a luggage rack when ordinary luggage of the same dimensions would not do so, and we judicially know that a radio fifteen inches square is about the same bulk as a small-sized handbag or 'week-end' bag. The bus was equipped with overhead baggage racks, and there is no evidence that they were such as to be more dangerous for stowage of radios than for stowage of other luggage of equivalent size and square shape, nor any contention that they were other than the usual type of racks found on most inter-city busses. Assuming the maximum size ascribed to the radio, there probably was evidence from which the jury might have inferred that it would be difficult for a passenger to stow such an article at his feet while seated or under the seat. There was also testimony from which the jury might properly conclude that the carrier had a rule forbidding radios to be stowed in the racks, and evidence to the effect that when the soldier brought the radio on board, the driver tried to persuade him to check it in the baggage compartment but finally let him bring it in with him on the promise not to put it in the rack. The only evidence as to the object of the rule was the driver's further statement that it was designed to avoid numerous small claims for damage to the delicate mechanism of such instruments. There was no evidence of any rule against bringing radios into the bus. The accident occurred a few miles below Silsbee or about forty miles toward Beaumont from Kirbyville where Mrs. Caver had boarded the bus. At the time, Mrs. Caver sat in a special seat in the aisle toward the rear of the vehicle, and the radio evidently fell from the rack above her onto her head. It was the same radio which the soldier, who came aboard over one hundred and forty miles back, had brought in with him. It apparently fell from some cause other than an unusual motion of the bus.

No current authority need be cited for the well-known rule that, within reasonable limits, a passenger is entitled to bring luggage with him into a public conveyance, be it railway car, street car or motor bus. It was succinctly stated years ago in Gulf, C. & S. F. Ry. Co. v. Shields, 9 Tex.Civ.App. 652, 29 S.W. 652, er. ref., in which a slightly inebriated passenger named Harris brought on board with him a sack filled with iron, groceries and a jug of alcohol, the jug falling out and causing a fire that burned a fellow passenger. The latter alleged 'that defendant negligently allowed the said sack to be brought into the said train and into the car, and placed on a seat.' See 9 Tex.Civ.App. 652, 28 S.W. 709. The court on the final appeal said (9 Tex.Civ.App. 652, 29 S.W. 653): 'It cannot be successfully denied that Harris had the right as a passenger to carry baggage on the train, and that he had the right to carry it in a sack, if he chose to do so.' The court added: 'We think it is equally clear that, in the absence of some information or circumstance indicating that the sack contained something dangerous to other passengers, it was not the duty of appellant's conductor or any other employe to open the sack and examine its contents.' At the same time it is of passing interest to note that the...