Boltinghouse v. Thompson

• Decision Date: 22 December 1928
• Docket Number: (No. 8097.)
• Citation: 12 S.W.2d 253
• Parties: BOLTINGHOUSE et al. v. THOMPSON et al.
• Court: Texas Court of Appeals

12 S.W.2d 253

BOLTINGHOUSE et al. v. THOMPSON et al.

(No. 8097.)

Court of Civil Appeals of Texas. San Antonio.

December 22, 1928.

Error from District Court, Bandera County; L. J. Brucks, Judge.

Suit by Martha L. Boltinghouse and husband against Robert High Thompson and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Douglas, Carter & Black, of San Antonio, and W. S. Ethridge, of Bandera, for plaintiffs in error.

J. A. Eames, of Bandera, and Hertzberg, Kercheville & Thomson, of San Antonio, for defendants in error.

FLY, C. J.

This is a suit for damages prosecuted by Martha S. Boltinghouse joined by her husband, J. F. Boltinghouse, against Robert High Thompson, Mason Foster, Louis Foster, John Casparis, Henry Schmelphening, A. S. Clayton, and Oscar Clayton. This is the second appeal; the first being reported in 291 S. W. 573. The grounds of negligence were that defendants in error were engaged in moving, leveling, and repairing a schoolhouse near a public road, and had stretched two cables across the road in the furtherance of their work, that they gave no warnings, and Mrs. Boltinghouse, passing along the road with a lady friend who was driving the automobile, ran into and against the cable and injured Mrs. Boltinghouse quite severely.

The cause was submitted to a jury on special issues, and on their verdict judgment was rendered that plaintiffs in error take nothing by their suit.

The jury found that defendants in error were guilty of negligence resulting in injury to Mrs. Boltinghouse, but also found that she and her companion were guilty of negligence that contributed to the injury.

The testimony showed that defendants in error, with other men in the community, were working on the schoolhouse without recompense or pay, as citizens and patrons of the school, and that the cables became necessary in the work, and were stretched across a third class road near the schoolhouse. Another passageway around the cables had been used by other vehicles, and was plainly visible, and the cables were not only large enough to be seen by the two women in the automobile, but were seen by them before they got close. The car was running rapidly, about 30 miles an hour, when the cables were struck. There was evidence indicating that the driver was reckless in her handling of automobiles. The two women were not looking along the road in front of them, but were looking at the men working on the schoolhouse. Mrs. Boltinghouse admitted that she saw the men about the schoolhouse and talked to her companion about the school, and did not know what struck her. She said: "I was looking off to one side, I don't deny that. The cables were in plain view." The cables could be seen across the road 300 or 400 yards away, and were high enough directly across the road for an automobile to pass under them, but if a car went over to the left, it would hit the cables. The cables were as large as a man's arms. Mason Foster swore: "If they had gone in the road towards the schoolhouse they could have missed both of these cables." There was a shorter road, and if the two women had traveled that shorter road, they would not have touched the cables. It was in evidence that Mrs. Alexander, the driver of the car, said at the time of the accident that they were looking at the schoolhouse, and that was the reason why they did not see the cables. T. B. Massey swore: "I had to pass by this place the morning of the accident, September 4th. I was in a Ford touring car. I went along that road. I saw the cables, two cables. I had a friend in the car with me. It must have been about 11 o'clock. I could see the cables something like 150 yards ahead, something like that. There was nothing to obstruct the view. I kept in the road and drove under the cables. I did not turn out of the road. There was nothing to obstruct the view as I came up the road. I had a top on the car I was in. I did not slow up when driving under the cables. I was driving the car." The two women were in a Ford coupé car.

A large preponderance of the evidence tended to show an utter lack of care and contributory negligence on the part of the two women. The cables were large and visible for a long distance, and, if the car had been kept in the road, or had turned off on the shorter route, no accident would have happened. Mrs. Boltinghouse admitted that she did not look along the road, but was looking at the men at the schoolhouse, and did not see the cables that were plainly visible. She was riding in the automobile as the guest of her friend Mrs. Alexander. The witnesses all agreed that the cables were large and could be seen for hundreds of feet away. Children at the schoolhouse warned the two women. Mrs. Boltinghouse said to Mrs. Casparis: "We could have avoided the accident, if we had listened to the children. * * * We didn't pay any attention to what the children said, if we had we could have avoided it."

Mrs. Boltinghouse may not have known that the cables were stretched across the road, but she could have had that knowledge if she had used her sense of sight or of hearing. The rule is that, when the means of knowledge are open and palpable, the party not using the means is guilty of negligence. As said in El Paso Printing Co. v. Glick (Tex. Civ. App.) 246 S. W. 1076: "Contributory negligence implies misconduct, the doing of an imprudent act by the injured party, or his dereliction in failing to take proper precaution for his personal safety." The court in the same case correctly said: "One does not assume a danger of which he has no knowledge or means of knowledge."

Under well-settled law, under the facts of this case Mrs. Alexander was guilty of gross...