Airline Motor Coaches v. Howell

• Decision Date: 04 April 1946
• Docket Number: No. 4340.,4340.
• Citation: 195 S.W.2d 713
• Parties: AIRLINE MOTOR COACHES, INC., v. HOWELL et al.
• Court: Texas Court of Appeals

Page 713

195 S.W.2d 713

AIRLINE MOTOR COACHES, INC., v. HOWELL et al.

No. 4340.

Court of Civil Appeals of Texas. Beaumont.

April 4, 1946.

Rehearing Granted and Reversed and Remanded June 27, 1946.

Appeal from District Court, Polk County; E. T. Murphy, Judge.

Action by Mrs. Gloria Howell and her husband against Airline Motor Coaches, Inc., to recover for injuries sustained by named plaintiff while a passenger in defendant's bus which collided with an automobile. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded for new trial.

Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, and M. M. Feagin, of Livingston, for appellant.

Allen, Helm & Jones, of Houston, and Campbell & Foreman, of Livingston, for appellees.

COE, Chief Justice.

Appellee, Mrs. Gloria Howell, and husband, H. A. Howell, sued appellant for damages for personal injuries alleged to have been sustained by Mrs. Howell when riding as a passenger upon a bus of appellant, and recovered judgment upon the verdict of a jury for the sum of $20,000.

The injuries alleged to have been sustained by Mrs. Howell were received in a collision between a bus owned and operated by the appellant and a Pontiac automobile being driven by one Robert Hogland on the highway leading from Livingston to Houston, Texas.

Appellees plead and the jury found that appellant was guilty of the following acts of negligence on the occasion of the collision, each of which was a proximate cause of the injuries suffered by appellee, Gloria Howell; that the driver of the bus was operating same at an excessive rate of speed under the conditions and circumstances then existing; that immediately prior to the collision the driver of the bus failed to have the bus under proper control; that immediately prior to the collision the bus driver failed to keep a proper lookout for other motor vehicles using the highway; that he failed to timely reduce the speed of his bus; that he failed to timely apply the brakes of the bus; that immediately prior to the collision the bus driver was talking to a Mr. Holloway; that immediately before the collision the bus driver could have turned the bus aside sufficiently far to avoid the collision; that prior to the collision Gloria Howell was in a position of peril; that the bus driver discovered the perilous position of Gloria Howell in time, by the exercise of ordinary care in the use of all the means at his command commensurate with his own safety, the safety of the bus and the safety of the other passengers, to have avoided the collision; that after discovering the perilous position of Gloria Howell in time, by the exercise of ordinary care in the use of all the means at his command, and commensurate with his own safety, the safety of the other passengers and the safety of the bus, to have avoided a collision, the bus driver failed to exercise the ordinary care which a careful and prudent person would have exercised under the same or similar circumstances to have avoided the collision, and that such failure was the proximate cause of the injuries to Gloria Howell. In answer to special issue No. 24, the jury found that Mrs. Howell had suffered damages in the sum of $20,000. Several of appellant's exceptions which will be hereinafter discussed are directed at this issue. The jury further found that the collision of the bus with the Pontiac automobile was not the result of an unavoidable accident and that the manner in which the Pontiac automobile was being operated at or immediately before the collision was not the sole proximate cause of the collision of said vehicles.

There is no contention made that the evidence is insufficient to support either of the findings made by the jury. For that reason we will not undertake to set out the facts as revealed by the record other than such as is necessary for discussing the several points hereinafter discussed. Appellant brings forward in its brief 22 points upon which it requests this court to reverse the judgment of the trial court. It groups the first nine such points in its brief, the first four of which complain of the action of the trial court in overruling appellant's objections and exceptions to special issue No. 26 as submitted by the court to the jury. The remaining five of such points complain of the failure of the trial court to submit to the jury certain requested special issues. We will take them up in the order as presented in the argument.

The appellant plead as the sole proximate cause of the collision in question the following acts of said Hogan in the management and operation of his said automobile at and immediately prior to the collision in question. The evidence was sufficient to support findings by the jury, if such issues had been submitted, that the driver of said automobile was guilty of each of the acts plead by appellant, which are in substance that, at and immediately prior to the time of the collision between the bus of the appellant and the automobile that the driver of the automobile failed to have same under proper control; that the driver of said automobile was driving the same at a rate of speed in excess of that which an ordinarily prudent driver in the exercise of ordinary care would have driven the same under the same or similar circumstances; that immediately prior to the time of the collision involved herein the driver of the automobile drove his automobile upon the righthand side of the highway when travelling in the direction in which the bus was travelling; that in driving the said automobile in such manner as to permit same to skid or slide directly in front of appellant's bus.

Appellant requested in proper form issues submitting each of the foregoing acts on the part of the driver of the Pontiac automobile as being the sole proximate cause of the collision in question and the resulting injuries to the appellee, Gloria Howell, together with issues on negligence, and in addition thereto requested an issue inquiring if the acts of the driver of the automobile involved herein in permitting his automobile to go upon the right-hand side of the highway when travelling in the same direction in which the bus was driving concurring with the acts of said driver of said automobile in permitting the same to skid directly in front of the bus at and immediately prior to the time of the accident, was the sole proximate cause of the collision involved herein and of the injuries sustained by the appellee, Mrs. Gloria Howell.

The court submitted the defense of sole proximate cause by special issue No. 26, which is as follows: "From a preponderance of the evidence, do you find that the manner in which the Pontiac automobile was being operated at and immediately before the collision was not the sole proximate cause of the collision of said vehicles? Answer `It was not the sole proximate cause' or `It was the sole proximate cause.'" The appellant timely objected to this issue on the ground, among others, that it did not submit to the jury the defensive issues in the manner and form as plead by appellant, that it was entitled to have the various acts which the evidence in the cause disclosed or raised the issues were committed by the driver of the automobile which collided with the bus which were or were not the sole proximate cause of the accident in the manner and form as plead by the appellant, and because the issue so worded required the jury to find the existence of one or more state of facts which, under the undisputed evidence were actually committed by the driver of the automobile and which undisputed acts the jury should be permitted to find and ascertain were or were not the sole proximate cause of the accident such as the undisputed fact that the driver of the automobile permitted his automobile to go upon the wrong side of the highway and that the driver of the automobile permitted his automobile to skid to the front end of the bus upon said driver's wrong side of the highway, and in lieu of special issue No. 26 it prayed that the court submit its special requested issues, and each and all of same, which are in substance set out above; that such issue restricted the jury to the consideration of some one act having been committed by the driver of the automobile as constituting the sole proximate cause of the collision when the jury might find and believe that one or more acts committed by the driver of the Pontiac automobile, concurring together, was the sole proximate cause of the collision. Appellant contends that the court should have submitted its affirmative defenses in the manner and form as plead by appellant and should not have submitted such defenses in one general issue over the timely objection of appellant.

In addition to the foregoing special defenses, the appellant plead that the collision in question was the result of an unavoidable accident and requested the court to submit an issue to the jury inquiring whether such collision was the result of an unavoidable accident. Such issue was submitted by the court with the resulting answer as set out above.

The appellees counter with a proposition that since appellant plead the defenses of sole causation and unavoidable accident, without pleading separate and distinct facts raising the two defenses, and since the same evidence that raised the issue of sole causation also raised the issue of unavoidable accident that the appellant was entitled to the submission of only one of the defenses, and since the court properly submitted the issue of unavoidable accident the appellant can not complain of the court's manner of the submission of the issue of sole causation. In connection with the issue submitting the question of unavoidable accident, the court gave the following as a definition of unavoidable accident; "You are instructed that the term unavoidable accident, as used herein, means an accident which occurred without negligence on the part of either the bus driver or the...