Alamo Iron Works v. Prado

• Decision Date: 11 February 1920
• Docket Number: (No. 6327.)
• Citation: 220 S.W. 282
• Parties: ALAMO IRON WORKS v. PRADO.
• Court: Texas Court of Appeals

220 S.W. 282

ALAMO IRON WORKS v. PRADO.

(No. 6327.)

Court of Civil Appeals of Texas. San Antonio.

February 11, 1920.

On Motion for Rehearing, April 7, 1920.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Emilio R. Prado against the Alamo Iron Works. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lewright & Douglas, of San Antonio, for appellant.

Dwyer & Dwyer, Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellee.

COBBS, J.

This suit was to recover $20,000 for personal injuries, $20, the value of a bicycle, and $100 medical treatment by Emilio R. Prado, appellee, against Alamo Iron Works, appellant. It was tried by a jury upon special issues, resulting in a judgment in favor of appellee against appellant in the sum of $9,500.

The claim for damages was predicated upon the alleged collision between appellee and appellant, while appellee was riding a bicycle at the intersection of Ninth and Austin streets in the city of San Antonio, where he was struck by an automobile truck operated for appellant, which occasioned the injury by its alleged negligence, as follows:

"In turning the truck into Ninth street from Austin street before reaching the center of Ninth street; in failing to give a signal before making said turn; in turning into Ninth street at a rapid and dangerous rate of speed; and in the driver of the truck failing to exercise ordinary care to avoid injuring plaintiff after discovering that he was in a position of peril.

"Defendant answered by general denial, and also by special plea, alleging contributory negligence on the part of plaintiff as follows: That plaintiff `did not look ahead where he was going,' and thus ran into said truck at full speed; and that by the exercise of ordinary care plaintiff could and would have seen the truck, and would have avoided the collision."

The first assignment complains the court erred in refusing to give a peremptory instruction to the jury to return a verdict in favor of appellant, as requested by special charge No. A, upon the ground that the evidence shows beyond dispute the accident would not have occurred except for the negligence of plaintiff (appellee) himself, at and immediately prior to such accident.

Such a charge is, of course, predicated upon the theory that either there was no fact to be submitted to the jury at all, or, if submitted, not sufficient in law to predicate a recovery, or that it was all one way and undisputed. This assignment requires an examination of all the facts to determine the question.

The proposition is appellant was guilty of contributory negligence in failing to look for other vehicles at the intersection where the accident occurred which caused or contributed to bring about the collision, and that no issue of discovered peril was raised by the evidence. Appellee was therefore precluded from a recovery as a matter of law.

The appellee insists because the motion for a new trial only states the trial court erred in refusing to give a peremptory instruction as requested by the charge, without stating to the court any grounds or any reason why a peremptory instruction should have been given, did not properly inform the trial court of the grounds of objection, and are too general to be considered, and further contended it embraced a double contention in that: First, the appellee was guilty of contributory negligence in failing to look; and, second, that the issue of discovered peril is not raised by any evidence.

It is well enough in the outset to here follow appellee's statement, presented in a concrete form, of the findings of the jury upon the issues as follows:

"That the appellant's automobile truck turned into Ninth street at a negligent rate of speed; second, that the driver of the automobile truck turned to the left to enter Ninth street before reaching the center of the crossing, and, third, that the driver of the automobile truck failed to give a visible or audible signal before making the turn, and that each of these acts caused the accident and injuries to the plaintiff. Two of these acts of negligence, namely, the negligent rate of speed and the turning of the truck before reaching the center of the crossing, are not questioned at all by the appellant in its brief. * * *"

It is not shown that they did not produce the collision. The law regulating the speed of vehicles is as follows:

Article 820k, Vernon's Pen. Code 1918 Supp., provides:

"(g) All vehicles approaching an intersection of the public highway with the intention of turning thereat, shall, in turning to the right, keep to the right of the center of such intersection and in turning to the left, shall run beyond the center of such intersection, passing to the right before turning such vehicle to the left."

"(k) The person in charge of any vehicle in or upon any public highway, before turning, stopping or changing the course of such vehicle, shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course."

Rule 26 of the city ordinances of the city of San Antonio, introduced in evidence, provides:

"When two vehicles approach one another on the same street in opposite directions and the driver of one or both vehicles desires to turn off on a side street (a) the vehicle which continues on the street in the original direction has the right of way over the vehicle turning off."

The testimony of appellee was to the effect he came on the right-hand side of Austin street, traveling 6 or 7 miles an hour on his bicycle, got on the south side of Ninth street, saw the automobile coming on the right side, the side appellee belonged on, and thought he was coming straight up Austin street. Appellant never gave a signal, sign, or anything, and when he went to turn round turned so quick, coming about 10 or 15 miles an hour at the time he noticed appellant, could not avoid appellant striking him. Appellee further testified:

"The autotruck never gave a signal, and when I got here (indicating) to the corner, he struck me; he turned right here at the corner, on this side (indicating). He was going about 15 or 20 miles. He should have come over here (indicating) and turned to the right or center of Austin street, taken the right side; he did not do that, he went to this side (indicating).

"I was struck about 5 or 6 feet from the corner of Ninth street, more or less. The driver of that autotruck made no sign whatever; he did not put out his hand; he did not stop and let me pass on; nor did he blow his horn.

"I watched the truck during the time it passed from letter D to letter G. It was coming this way (indicating). It was coming straight, and I was looking at it all the time. I didn't see the automobile when he started to make the turn. I can't just exactly say how many feet the automobile was from me when I looked up and saw it just before it hit me, but I was about here (indicating letter E) when I was struck.

"I was about 4 or 5 feet from the automobile when I first saw it right here at E, and I was going then at 6 or 7 miles per hour; I hadn't been going faster than that. I hadn't been looking down to the ground ahead of my bicycle just before I got to E; I was looking to the front. I didn't see the automobile from over here because I was taking care of my right side.

"From the time I first saw the automobile up until the time the car struck me I did not see the man on the automobile give any signal at all; never heard any blowing of the horn. He did not sound the horn or blow the horn; I am sure of that. I will swear he never put out his hand at all before he began to turn into Ninth street; I didn't see him put his hand out. When I saw him the last time at G, the truck was still going due north; was still coming straight when I noticed him, straight north; that was the reason that I thought he wasn't going to turn there. I didn't see the automobile while it was turning; didn't see it until he came right close here, where he reached me; I didn't have no time to get away.

"I never saw the truck from the time I first looked at it until just a few moments before it struck me; it didn't give me any time to get away. I didn't see the truck when it was at the corner of Chestnut street and Austin street — it was coming from here (indicating letter D). I watched the truck from the time I first saw it until it got down to the corner of Chestnut street and Austin street. I observed the truck there, but he gave me no signals, no signs. I kept one eye on the truck from the time I first saw it until it got up to the corner of Chestnut street and Austin street, until about when he made this turn, why, the first thing I saw he was close to me; I did not see him when he first began to make the turn, it had been a second or two, more or less, before that, that I saw him last. When I last saw the truck just before it began to make the turn it was about right here (indicating place by letter G). I watched the truck during the time it passed from letter D to G. It was coming straight, and I was looking at it all the time; I didn't see the automobile when it started to make the turn. I can't just exactly say how many feet the automobile was from me when I looked up and saw it just before it hit me, but I was about here (indicating letter E) when I was struck. I didn't see no other vehicle on Austin street just before this accident.

"I was 4 or 5 feet from the automobile when I first saw it right here at E, and I was going then at 6 or 7 miles per hour.

"When I saw him the last time at G, the truck was still going due north, was still...