Anizan v. Paquette

• Decision Date: 13 January 1938
• Docket Number: No. 10526.,10526.
• Citation: 113 S.W.2d 196
• Parties: ANIZAN v. PAQUETTE.
• Court: Texas Court of Appeals

113 S.W.2d 196

ANIZAN v. PAQUETTE.

No. 10526.

Court of Civil Appeals of Texas. Galveston.

January 13, 1938.

Rehearing Denied February 3, 1938.

Appeal from District Court, Harris County; Chas. G. Dibrell, Judge.

Action by Victor N. Paquette against A. F. Anizan for injuries sustained by plaintiff's wife when automobile in which plaintiff's wife was riding collided with defendant's truck. Judgment for plaintiff for $1,500, and defendant appeals.

Affirmed.

King, Wood & Morrow and Newton Gresham, all of Houston, for appellant.

Fogle & Holden, of Houston, and Harris & Coltzer and Geo. W. Coltzer, all of Galveston, for appellee.

CODY, Justice.

This is an automobile collision case. It is the same collision that is the subject of litigation in the case of Laborde v. Anizan, Tex.Civ.App., 112 S.W.2d 763, opinion in which is also delivered today. Mrs. Paquette, wife of appellee, was riding as the guest of Mrs. Mary Laborde, on January 15, 1935 when the collision occurred. Just prior to the collision the Laborde car was proceeding north on Houston avenue, and appellant's truck south on the same street in Houston. When the collision occurred, the truck was making a left-hand turn, from Houston avenue into Dart street. The negligence alleged by appellee on the part of appellant's truck driver was failure to keep a proper lookout; failure to go around the center of the intersection in making his left-hand turn; driving at an excessive rate of speed; failure to hold out his arm to signal his purpose of turning; in obstructing the line of passage of the Laborde car; failure to wait before turning until he could do so without danger of collision; and failure to stop after observing the danger of collision. Appellant's answer was a general denial, and a general plea of contributory negligence. In response to special issues, the jury found: That the accident was not unavoidable. That the truck driver was not driving in excess of 20 miles per hour. That he did not fail to keep a proper look-out. But that he was guilty of negligence which proximately caused the collision, in failing to hold out his arm as a signal, and in attempting to make the turn without first seeing there was sufficient space to make the movement in safety. The jury acquitted Mrs. Paquette of contributory negligence, and found that certain acts of Mrs. Laborde were not the sole proximate cause of the collision, and assessed damages at $1,500.

The appellant has assigned as error: (1) The court's charge to the jury on unavoidable accident; (2) the court's conclusion of a prior statement made by Mrs. Laborde, tendered by appellant for impeachment purposes and as being contrary to her evidence on the trial; (3) improper and prejudicial argument of appellee's counsel to the jury; (4) the action of the trial court, after appellee's counsel had concluded the opening argument to the jury, and after appellant's counsel had waived his right to argue, in allowing appellee's counsel to present further argument.

That portion of the court's charge complained of is the definition in connection with special issue No. 1. The special issue and the definition are as follows:

"Do you find from a preponderance of the evidence that the collision was not the result of an unavoidable accident?

"Instead of answering `Yes' or `No' let the form of your answer be `It was an unavoidable accident' or `It was not an unavoidable accident'.

"By the term `unavoidable accident', as used in this issue, is meant a sudden and unexpected happening occurring without fault or negligence on the part of any party connected therewith."

Appellant's exception to the foregoing definition (which had evidently been amended in attempting to comply with some former objection) reads:

"Defendant objects and excepts to the court's definition of `unavoidable accident' as amended, for the reason that such definition is erroneous and confusing and is not a correct definition of `unavoidable accident', and, as worded, will lead the jury to believe that the collision in question could not have been an unavoidable accident unless Mrs. Laborde's negligence also failed to have any connection therewith, said definition being erroneous in that respect.

"The term `any party connected therewith' as used in said definition is uncertain, vague and indefinite and is not properly restricted, and particularly it isn't restricted to defendant, defendant's driver and Mrs. Paquette, and said definition, as used in this charge, does not specifically instruct the jury that `by any party connected therewith' does not include Mrs. Laborde, and the jury are not specifically instructed that by an unavoidable accident is meant an occurrence happening without the fault of the defendant or his driver or of Mrs. Paquette."

It is conceded by appellant that, in the usual case, where the acts of a third party are not involved or where all the parties connected with the accident are parties to the suit and before the court, the definition of unavoidable accident or the one given by the court in this case is proper. But he contends that in the instant case the evidence raises the issue, and would have supported the finding, that the collision in which Mrs. Paquette received her injuries was not caused either by her own negligence or that of the appellant or his driver, but by the negligence of Mrs. Laborde, who was not a party to the suit, and who was the one that drove the car in which Mrs. Paquette was riding at the time of the collision. In support of this contention, appellant cites Dallas Ry. & Terminal Co. v. Boland, Tex.Civ.App., 53 S.W. 2d 158, 160; Panhandle & S. F. Ry. Co. v. Friend, Tex.Civ.App., 91 S.W.2d 922; Greer v. Thaman, Tex.Com.App., 55 S.W. 2d 519; and Southern Ice & Utilities Co. v. Richardson, Tex.Com.App., 95 S.W.2d 956.

We refer only to the Boland Case, as this is the case chiefly relied on. There the son of the plaintiff was killed while riding a bicycle by an automobile being driven by the defendant McVey, who was in the act of passing a bus belonging to the other defendant in the case, the Dallas Railway Company, at the time his automobile collided with plaintiff's son. And the trial court, in connection with the issue on unavoidable accident, gave this definition:

"In connection with this issue, you are instructed that an unavoidable accident is an unforeseen and unexpected happening which occurs without negligence on the part of any of the parties involved therein proximately contributing thereto."

On appeal, in passing on error assigned to this definition, the court said:

"Clearly, under the facts in this case, as between McVey and the children riding on the bicycle, the jury could have found that the injury was the result of an unavoidable accident, regardless of whether the operator of the bus was guilty of negligence in using said street or not. While the definition as given by the court is the ordinary and accepted definition of an unavoidable accident, where, as in this case, there was no connection between the bus company and McVey, and appellees had alleged entirely separate and distinct acts of negligence on the part of each, the trial court should have submitted to the jury separately as to each defendant the question as to whether the injury was an unavoidable accident. If, as a matter of fact, the injury was caused by reason of the driver of the bus operating the car without due regard for the safety of other people, the jury might have well decided as to said bus company the injury was not an unavoidable accident,...