Bell Cab Co. v. Vasquez

Decision Date16 October 1968
Docket NumberNo. 14694,14694
Citation434 S.W.2d 714
PartiesBELL CAB COMPANY, Inc., Appellant, v. Ascencion Gomez VASQUEZ et al., Appellees. . San Antonio
CourtTexas Court of Appeals

Hubert W. Green, Jr., San Antonio, for appellant.

Frank R. Southers, Southers, Mendelsohn, Goldberg & Lyons, San Antonio, for appellees.

BARROW, Chief Justice.

This appeal relates primarily to the application of the humanitarianism or rescue doctrine. A judgment non obstante veredicto was entered whereby appellee Edward Vasquez recovered damages from appellant in the sum of $3,170, individually, for his medical expenses and loss of contributions, and in the sum of $25,000 as next friend for his nineteen-year-old son, Ascencion Gomez Vasquez, who was struck by one of appellant's taxicabs which was being operated by Daniel Vera Auces in the scope of his employment.

The accident was the result of a somewhat bizarre set of facts. About 2:00 a.m. on May 20, 1966, Ascencion was driving a 1956 Chevrolet sedan enroute to his work for a wholesale distributor of newspapers. A white car passed him at a high rate of speed as he proceeded north on 21st Street near the intersection of Durango Street in the City of San Antonio. Twenty-first Street ends at Durango Street, and as he neared this 'T' intersection, he noticed that a white car had run into a utility pole and the front end was extended in the air against the pole at an angle with the headlights still burning. He also noticed several people running from the car to the west on Durango Street. He turned his car to the west on Durango Street and shortly thereafter saw the body of a girl lying in the eastbound lane of Durango Street . He stopped his car in the westbound lane near her body and went to her assistance. He left the headlights of his car burning on the bright (upper) beam. Shortly after he got to the girl, he heard a car, which turned out to be appellant's taxicab, turn onto Durango from 24th Street and proceed east towards him. He stood over the girl and tried to attract the attention of the operator of the approaching car by waving his arms and shouting. When he realized the car would not stop, he tried to jump on the hood. The taxicab struck his left leg resulting in a bad fracture of same near the knee.

Auces testified that he was proceeding east on Durango Street about 25 m.p.h., accompanied by a passenger. He saw the car stopped with the bright headlights facing him, but did not see the boy until just before the impact when the boy appeared to jump in front of his taxicab. He applied the brakes and came to a stop about a length and a half beyond the boy's car. This testimony was substantially supported by the testimony of the passenger, Vicinte G. Gutierrez, although he noticed the wrecked car east of the stopped car. Shortly after the taxicab stopped, Josephine Valdez, the girl lying in the street and apparently run over by the taxicab, was helped to her feet by a girl friend who returned to the scene after the accident and both girls fled to the west. Police officers arrived in a few minutes and Ascencion was taken to the hospital by ambulance. The two girls who had fled were apprehended and returned to the scene by the police.

Measurements show that Durango Street is 27 feet wide and, although there is only one block on Durango between 21st and 24th Streets, this block is over 1300 feet long. The boy was struck approximately 250 feet west of 21st Street. This area is very dark, in that there is only one street light between these two intersections. This was particularly so on this night, as it was very cloudy with spotted light rain falling in the area.

Although liability was vigorously contested at the trial, there is no complaint on this appeal of the jury findings of primary negligence proximately causing the accident by the failure of Auces to keep a proper lookout, to properly apply the taxicab's brakes, and by operating at an excessive rate of speed under the circumstances. Appellant urges, however, that it was entitled to a take-nothing judgment based on the jury's findings that Ascencion was contributorily negligent proximately causing the accident in failing to move to one side in time to avoid being hit by the cab. There is sufficient evidence to support these findings from the testimony of Ascencion alone. However, the trial court entered judgment for appellee based on the jury findings that immediately before Ascencion was struck by the taxicab the girl was in a position of imminent peril by the approaching taxicab, and that Ascencion attempted to rescue her from this position of peril by waving his hands and shouting. Further, in attempting to rescue the girl, Ascencion acted as an ordinarily prudent person would have acted under the same or similar circumstances.

In addition to a point seeking judgment under the findings of contributory negligence, appellant urges that there is no evidence or, in the alternative, the evidence is insufficient to support the finding that Ascencion acted as an ordinarily prudent person in attempting the rescue. In any event, it urges that such finding is in conflict with the finding of contributory negligence. It also asserts that there is no pleading or proper finding to support the rescue doctrine, and that one of the issues supporting same was duplicitous and constitutes a comment on the weight of the evidence. It presents two points complaining of testimony erroneously admitted in one instance and refused in another. It also urges that the finding of $24,000 for loss of earning capacity of Ascencion after he reaches twenty-one years of age is excessive.

The rescue doctrine is a recognition of the noble impulse that impels a man to deeds of heroism by rushing into danger to aid his fellow man. As Justice Cardozo stated in the landmark case of Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1 (1921): 'Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences.' Thus, as a general rule, 'one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not rashly or recklessly made.' Annotation 158 A.L.R. 190; Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 379 (Tex.Sup.1963); Kelley v. Alexander, 392 S.W.2d 790 (Tex.Civ.App., San Antonio 1965, writ ref'd n.r.e.).

Appellees invoked the rescue doctrine by their allegation, which was not excepted to, that Ascencion stopped to render assistance and to rescue the person lying in the street, and while doing so was struck by the taxicab. Appellant urges, however, that the rescue doctrine has no application here in that it had nothing to do with the girl lying in the street, although certainly its taxicab approaching in the lane of traffic in which the girl was lying, placed her in peril. The general rule which is stated above includes a requirement that the peril is brought about through the negligence of the defendant. This requirement is probably based on the proposition that under our tort system the liability of the defendant is usually predicated upon fault. This may be established, however, by his negligence in causing the perilous situation of the one sought to be rescued, or toward the rescuer after he had begun his attempt to rescue. Restatement of the Law of Torts, Second, § 472, Comment b; 38 Am.Jur., Negligence, § 229; Annotation 158 A.L.R. 189, 195, Liability for death of, or injury to, one seeking to rescue another, § d. Negligence of defendant.

It must be kept in mind, however, that there is no jury finding that appellant's negligent conduct created the imminent peril of the girl, nor can such a finding be implied by the absence of such an issue in view of appellant's objection to the court's charge for failure to submit such an issue. Rule 279, Texas Rules of Civil Procedure, Therefore, cases based upon the 'imminent peril' doctrine have no application in that the key to such a doctrine is that the defendant's negligent act created the apparent peril which in turn gave birth to plaintiff's conduct and injury in an attempt to escape from that apparent peril. See International & G.N.R. Co. v. Neff, 87 Tex. 303, 28 S.W. 283 (1894); Thode, Imminent Peril and Emergency in Texas, 40 Tex.Law Rev. 441, 443, 447.

The principal question to be determined on this appeal is the standard of care to be exercised by Ascencion during his rescue attempt, and more particularly the application of the jury verdict to this standard. Obviously, if society is to encourage rescue attempts, it must recognize that a reasonably prudent person will take greater risks to effectuate a rescue and often must act under great stress. Therefore, the legal standard of care which a party is required to exercise during a rescue attempt must be lowered. Such words as 'rash', 'reckless,' 'wanton,' and 'imprudent' have been used by our courts in limiting a rescuer's right to intentionally assume danger or in exposing himself to a known risk. See Panhandle & S.F. Ry. Co. v. Haywood, 227 S.W. 347 (Tex.Civ.App., Amarillo 1921, writ ref'd); Reddick v. Longacre, 228 S.W.2d 264 (Tex.Civ.App., Fort Worth 1950, writ ref'd n.r.e.); Longacre v. Reddick, 215 S.W.2d 404 (Tex.Civ.App., Fort Worth 1948, mandamus overruled); International 3 G.N.R. Co. v. McVey, 81 S.W. 991 (Tex.Civ.App.1904, no writ).

On the other hand, other authorities lower the standard of care by requiring the rescuer to exercise the standard of conduct of any ordinary prudent person under the peculiar circumstances brought about by the rescue attempt. Halepeska v. Callihan Interests, Inc., supra; Southwestern Hydrocarbon Co. v. Thompson, 355 S.W.2d 823 (Tex .Civ.App., Waco 1962, writ...

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4 cases
  • Southwestern Transfer Company v. Slay
    • United States
    • Texas Court of Appeals
    • May 28, 1970
    ...p. 456 (1962), (beginning with 'The Goolsbee Case' and the footnotes at the bottom of p. 460); Bell Cab Company v. Vasquez, 434 S.W.2d 714 (San Antonio Tex.Civ.App., 1968, error ref., n.r.e.). Only by the two inferences mentioned has plaintiff even made out a prima facie cause of action aga......
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    ...rescued person if the latter's negligence created the situation which compelled the rescue. See Bell Cab Co. v. Vasquez, 434 S.W.2d 714 (Tex.Civ.App.--San Antonio 1968, writ ref'd n.r.e.); Kelley v. Alexander, 392 S.W.2d 790 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.); Reddick v. Lo......
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    • Texas Court of Appeals
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