Blaugrund v. Gish, 8164; Motion No. 16377.

• Citation: 179 S.W.2d 266
• Decision Date: 23 February 1944
• Docket Number: No. 8164; Motion No. 16377.,8164; Motion No. 16377.
• Parties: BLAUGRUND v. GISH.
• Court: Texas Supreme Court

179 S.W.2d 266

BLAUGRUND v. GISH.

No. 8164; Motion No. 16377.

Supreme Court of Texas.

February 23, 1944.

Rehearing Denied March 29, 1944.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Elton R. Gish against A. J. Blaugrund to recover for injuries and damages sustained in an automobile collision. To review a judgment of the Court of Civil Appeals, 279 S.W.2d 257, which affirmed a judgment for plaintiff, defendant brings error.

Judgments of Court of Appeals and District Court affirmed.

Kemp, Smith, Goggin & White, of El Paso, for plaintiff in error.

Cunningham, Ward & Cunningham, of El Paso, for defendant in error.

CRITZ, Justice.

In the trial court respondent was awarded damages against petitioner for personal injuries and injuries to his automobile sustained in a collision on a State highway near the City of El Paso, and the judgment was affirmed by the Court of Civil Appeals. Tex.Civ.App., 179 S.W.2d 257.

Highway No. 54 runs generally north and south. It is a broad, straight, paved highway, marked for four traffic lanes. Pierce Avenue is a dead end street beginning on Highway No. 54 and running westerly. The highway and Pierce Avenue form a T. On the occasion of the collision out of which the instant suit grew, an employee of petitioner was driving petitioner's truck north on the highway, intending to turn left on to Pierce Avenue. Respondent, who was traveling on the highway in the same direction, undertook to pass petitioner's truck on the left-hand side. The collision occurred as the truck was turning toward Pierce Avenue to its left in the path of the on-going car.

In answer to special issues the jury found that the driver of petitioner's truck was negligent in the following respects: (1) In failing to give a plainly visible signal to respondent before changing the course of the truck; (2) in failing to keep a proper lookout for automobiles that might be operating on the highway; and (3) in changing the course of the truck when there was insufficient space for such movement to be made in safety. Each of these acts of negligence was found to be a proximate cause of the collision. In answer to special issues regarding the contributory negligence of the respondent, the jury found: (1) That respondent did not fail to sound audible and suitable signals before attempting to pass the truck; (2) that respondent did not fail to keep a proper lookout for the truck; and (3) that respondent was not driving his automobile at a high and excessive rate of speed under the circumstances at or just prior to the collision. Upon these answers judgment was rendered in favor of respondent for the amount of damages assessed by the jury.

Errors are assigned to the rulings of the Court of Civil Appeals with respect to alleged misconduct of the jury. It is made to appear that in considering the amount of respondent's damages some of the jurors discussed the matter of a future operation which it might possibly be necessary for him to undergo. We have concluded that no error was committed by the court in its ruling that this did not constitute misconduct. The questions of a possible future operation, its expense and probable results were testified to by a physician upon the trial of the case. A jury is not guilty of misconduct in discussing evidence admitted by the court upon the trial. Petitioner recognizes this to be the general rule, but takes the position that the jury violated the court's instructions in that the charge of the court withdrew from its consideration this element of damages. We do not so construe the charge. Following the special issue in which the jury was called upon to determine the damages to be awarded the charge enumerated the elements which alone might be considered, but there was no affirmative instruction given by the court in the charge, or otherwise, withdrawing from the jury's consideration the evidence with respect to a future operation, and it is not disclosed that the petitioner requested such an instruction. It is well settled by many decisions that a mere recital of the elements which a jury may take into consideration in estimating damages is not sufficiently specific to amount to an instruction to the jury not to consider improper elements raised by the evidence and closely intermingled with proper elements. Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; Texas Coca Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 138 S.W.2d 254, error refused; City of Beaumont v. Wiggins, Tex.Civ.App., 136 S.W.2d 260, error dismissed; Texas Consolidated Theatres v. Slaughter, Tex.Civ.App., 143 S.W. 2d 659, error dismissed; Burlington-Rock Island R. Co. v. Ellison, Tex.Civ.App., 134 S.W.2d 306, error refused; Nehi Bottling Co. v. Patton, Tex.Civ.App., 142 S.W.2d 900. This evidence having been admitted by the court, petitioner should have anticipated that the jury would consider it in arriving at a verdict, and should have requested the trial court to instruct the jury affirmatively not to do so. Having failed to request such affirmative instruction, he cannot be heard to complain that the jury considered the evidence.

Petitioner contends that the record in this case shows that two...