Allen v. Bland

• Decision Date: 23 May 1914
• Docket Number: (No. 625.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 168 S.W. 35
• Parties: ALLEN v. BLAND.
• Court: Texas Court of Appeals

168 S.W. 35

ALLEN v. BLAND.

(No. 625.)^†

Court of Civil Appeals of Texas. Amarillo.

May 23, 1914.

Rehearing Denied June 13, 1914.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by C. E. Bland against R. S. Allen. Judgment for plaintiff, and defendant appeals. Affirmed.

Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

HALL, J.

This appeal is from the district court of Wichita county. Appellee sued appellant to recover damages alleged to have been sustained by Mrs. Belle Bland, wife of appellee. It is alleged, in substance, by appellee that his wife was run over and injured by an automobile driven by De Course Allen, the minor son of appellant; that said son was about 11 years of age; and that he carelessly, negligently, and willfully drove said automobile against the said wife of plaintiff, knocking her down in the street and caused the automobile to pass over her prostrate body. After describing her injuries, the petition states that De Course Allen was a very small, weak, reckless, careless, and inexperienced boy, wholly unfit and incapacitated to drive or steer an automobile through the streets of such a town as Wichita Falls, crowded as it was with people passing back and forth and across said street, all of which facts were well known to defendant, and that defendant had allowed his son to drive his machine at all times, day and night, and purchased the car for him; that defendant was guilty of gross, inexcusable, reckless, and careless negligence. The appellant answered by general denial and by a special plea, alleging that appellee's wife was guilty of contributory negligence in that she went upon the street in a crowded locality without looking or listening or taking any precaution whatever for her own safety, and that she negligently stepped in front of the car being driven by appellant's son, when said automobile was so close to her that appellant's son was unable to stop the same before she was struck thereby, although he used every effort in his power to do so. The jury rendered a verdict in favor of appellee for the sum of $3,500.

The first assignment of error presents for review the ruling of the court, in admitting the testimony of the witness St. Claire Sherrod, to the effect that witness had on at least two occasions met De Course Allen driving an automobile along the public road, and that said De Course Allen on each occasion had failed and refused to give him any part of the road. Appellant's objection to this testimony is that it was calculated to prejudice the jury against the boy and against appellant, as well as against the case. The issue of the boy's recklessness, carelessness, and incompetency was raised by the pleadings. Appellant had introduced several witnesses who testified that they had been in the car with the boy, and that he was careful and a competent driver, and that they had never known him to be guilty of any carelessness in the operation of his automobile. It was further shown that the boy had owned the car for several months, during which time he had driven it about 3,000 miles. It further appears from the record that the automobile in question was a powerful machine of the "underslung" type; that the driver's seat was only six or eight inches high, and when driving it the boy's face barely reached the driving wheel. We think this testimony was admissible to rebut the contention of appellant that his boy was careful and competent. The safety of the public demands that drivers of vehicles should be familiar with and observe the law of the road and the rights of other travelers. This testimony tended to show that the boy was either ignorant or heedless of the law of the road, and we think had a bearing directly upon the issue raised by the pleadings. It was further admissible as tending to sustain appellee's contention that while seated in his car he was not able to look over the steering wheel and the front of the machine and see objects ahead of him. H. & T. C. Ry. Co. v. Willie, 53 Tex. 318, 37 Am. Rep. 756; Texas Central R. Co. v. Rowland, 3 Tex. Civ. App. 158, 22 S. W. 134; Texas, etc., Ry. Co. v. De Milley, 60 Tex. 194; Gulf, etc., Ry. Co. v. Johnson (Tex. Civ. App.) 42 S. W. 584.

Plaintiff alleges that his wife was knocked down and run over by a heavy automobile "thereby inflicting upon her body painful, serious, and permanent injuries, lacerations, cuts, and bruises, which caused her then, and continuously since has caused her, intense pain throughout various portions of her body; * * * that her right foot and ankle was seriously and permanently bruised, the bones thereof fractured, and the muscles, tendons, and ligaments seriously and permanently lacerated, strained, and injured, causing a lameness inside of right foot which has continued from that time until this, and which will continue permanently; that along her left side and across the upper portion of her body the muscles, tendons, and ligaments of the same are seriously bruised, strained, cut, and lacerated, which caused her great physical pain"; and further declares that she has suffered great physical and mental pain by reason thereof, beginning at the time of the accident until the present, and that she will continue to suffer great physical and mental pain growing out of said injuries for years and to some degree as long as she lives. Over the objection of appellant, Mrs. Bland was permitted to testify that before being injured she was in comparatively good health, but that since the injury she was a nervous wreck. The objection to this testimony was that there was no pleading to sustain it. In our opinion this objection is not well taken. The rule, as announced in 13 Cyc. 189, is:

"The mind and nervous system being so intimately connected with the body and so likely to be affected by physical injuries, proof of impairment of these faculties is admissible under allegations in substance setting up grievous or permanent injuries."

This rule has been cited with approval and followed by the courts of this state. Rapid Transit Ry. Co. v. Allen, 54 Tex. Civ. App. 245, 117 S. W. 487; Texas & New Orleans Ry. Co. v. McCoy, 54 Tex. Civ. App. 278, 117 S. W. 446; Texas Midland Ry. Co. v. Simmons (Tex. Civ. App.) 152 S. W. 1106; Chicago v. McLean, 133 Ill. 148, 24 N. E. 527, 8 L. R. A. 765; Babcock v. St. Paul, etc., Ry. Co., 36 Minn. 147, 30 N. W. 449. The only way in which this testimony could have injured appellant was in augmenting the amount of the damages recovered, and since there is sufficient testimony to sustain the verdict, independent of the evidence relating to the condition of her nervous system, the admission of the evidence, if otherwise improper, is harmless.

Appellant submits the third and fourth assignments of error together and urges the propositions that, since an automobile is not per se a dangerous instrument, before appellant can be held liable for damages caused by his minor son, in operating it with his permission, the plaintiff must show by a preponderance of the evidence that such minor son was incompetent to properly and carefully operate it under ordinary conditions, and that this fact was known to the parent, and that the jury must further find that an ordinarily prudent person would not have, under the same circumstances, permitted such minor to operate the car. It is further urged under these assignments that it must appear that the son was engaged in the business of the parent and therefore occupied the position of a servant, or that the parent was guilty of negligence in permitting his son to operate it, and it is not sufficient that the father's act made it possible for the child to cause the injuries complained of, nor is it sufficient that the parent might have anticipated the injury. The objection under these assignments is to that part of the charge wherein it is said:

"In order to render a parent liable for an injury caused by the negligence of his child, it is essential that it should appear from the evidence that the parent might reasonably have anticipated the injury as a consequence of permitting the child to employ the instrument which produced the injury, and it must appear that the father's negligence made it possible for the child to cause the injury complained of."

Appellant requested a special charge, wherein the court was asked to instruct the jury that an automobile was not such a dangerous instrument as would authorize a finding that the defendant was negligent simply from the fact that he permitted his minor son to operate such automobile, and that plaintiff must further show by a preponderance of the evidence that the defendant's son was incompetent to properly and carefully operate the machine under ordinary conditions, that this fact was known to defendant and that an ordinarily prudent person would not have under the same circumstances permitted said minor to operate it. We have reviewed the charge of the court and believe it presents the law applicable to the facts, as favorably to appellant as he had a right to demand. It is not contended that an automobile is a dangerous instrument per se, when operated by a careful and competent driver, and the courts have so held frequently. McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. But as said in Daily v. Maxwell, 152 Mo. App. 424, 133 S. W. 353:

"But no one can deny that an automobile in the hands of a careless and incompetent driver would be a dangerous machine to turn loose on busy streets and would constitute a menace to travelers."

We do not construe the charge as instructing the jury that an automobile is a dangerous instrument per se; but we are not willing to hold that a powerful, heavy machine, such as the one in question, in the hands of an 85-pound boy, not yet in his teens, speeding along the streets of a populous and busy town, may...