Bragg v. Hughes

• Decision Date: 20 July 1932
• Docket Number: No. 9744.,9744.
• Citation: 53 S.W.2d 151
• Parties: BRAGG et al. v. HUGHES.
• Court: Texas Court of Appeals

53 S.W.2d 151

BRAGG et al. v. HUGHES.

No. 9744.

Court of Civil Appeals of Texas. Galveston.

July 20, 1932.

Rehearing Denied September 29, 1932.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Lela Bragg and others against Joe D. Hughes. Judgment for defendant, and plaintiffs appeal.

Affirmed.

J. S. Bracewell, of Houston, for appellants.

King, Wood & Morrow and H. E. Cox, all of Houston, for appellee.

PLEASANTS, C. J.

This is a suit brought by appellant, Lela Bragg, the surviving wife, and other plaintiffs, appellants herein, the children and the mother of Allen Bragg, deceased, against appellee to recover damages for the death of Allen Bragg which is alleged to have been caused by the negligence of the agents and employees of the defendant in the operation of a truck on a public highway near the city of Houston.

The appellee answered by general demurrer and numerous special exceptions to plaintiffs' petition, by general denial of its allegations, and by plea of contributory negligence on the part of the driver of the automobile in which the deceased was riding at the time of the collision by which his death was caused.

The trial in the court below resulted in a verdict and judgment in favor of defendant.

The evidence shows that appellee, who owns and operates trucks on the public highways leading out of Houston, had sent several of his employees with one of his trucks to Wortham, Tex., to bring back to Houston another truck belonging to appellee which had been burned and disabled at or near Wortham. As these employees were returning to Houston pulling the disabled truck, the front wheels of which were raised up and fastened upon the rear end of the truck which was being driven by appellee's employees, they discovered a Ford car which had run into the ditch on the side of the highway. When they arrived at the car in the ditch, appellee's employees stopped their truck on the side of the highway and proceeded to assist the driver of the Ford car in getting it out of the ditch. To do this they detached the disabled truck from the truck they were driving and left it standing on the side of the highway. They then, with the assistance of the owner of the Ford car, fastened it to the truck they were driving and pulled it out of the ditch. After they had gotten the car out of the ditch and were engaged in unfastening the chain which attached it to the truck, an automobile in which the deceased and another were riding ran into the rear of the disabled truck, which had been left standing on the right side of the highway, with such force as to cause an explosion and fire in which the occupants of the automobile were burned to death. At the time of this collision, the disabled truck only occupied about two feet of the concrete portion of the highway with its left rear wheel. There was no light on the truck at the time of collision, but the evidence shows that it was not dark at that time.

In answer to special issues submitted by the trial court, the jury found that the driver of the automobile in which deceased was riding at the time of the collision negligently failed to keep a proper lookout for objects on or near the highway, and that such negligence was a proximate cause of the collision, and that the automobile was being operated at a negligent rate of speed, and that was a proximate cause of the collision.

They also found in response to a special issue that the automobile in which Bragg was riding was not being driven in a negligent manner just prior to the time of the collision.

Appellants' first proposition complains of the judgment on the ground that these findings of the jury are so conflicting as to destroy the verdict and require its setting aside. The proposition is not without force, but we think the point has been properly ruled against appellants' contention. In the case of Thrush v. Lingo Co. (Tex. Civ. App.) 262 S. W. 551, 554 (writ of error refused), the jury found that the plaintiff was negligent in not driving to the center of the street before making a turn to the left, and that her failure to go to center of the street before turning to the left proximately caused the collision, and also found that on the occasion in question the plaintiff exercised ordinary care for her own safety. In discussing and deciding the question as to whether the verdict in that case was so conflicting as to require its setting aside, the court says:

"As the jury found that the specific acts complained of by appellee constituted negligence per se, and, further, that such acts were the direct and proximate cause of the injuries sustained by her, it was not error for the court to ignore the general finding of the jury that appellant on the occasion in question exercised ordinary care for her own safety, as this was but the expression of an opinion of the jury that, although appellant had violated said state statute, and that such acts proximately caused the injury sustained by her, she otherwise exercised ordinary care for her own safety and protection. Brewster v. City of Forney (Tex. Com. App.) 223 S. W. 175; Ball v. Youngblood (Tex. Civ. App.) 252 S. W. 872; Zucht v. Brooks et al. (Tex. Civ. App.) 216 S. W. 684.

"We are therefore of the opinion that the trial court did not err in rendering judgment for appellee upon said findings, and that said judgment should be in all respects affirmed; and it is so ordered."

Other cases in which the point has been ruled against appellant are St. Louis Southwestern Ry. Co. v. Miller & White (Tex. Civ. App.) 176 S. W. 830, 833; Peeler v. Smith (Tex. Civ. App.) 18 S.W.(2d) 938; Dallas National Bank v. Peaslee-Gaulbert Co. (Tex. Civ. App.) 35 S.W.(2d) 221.

We think the principle that a specific finding should control a general finding is properly applicable in reconciling seeming conflicts in a jury's verdict. It is the duty of the courts to construe verdicts as not irreconcilably conflicting when there is any reasonable explanation of seeming conflicts. We should always assume the honesty and at least ordinary intelligence of a jury, and that they never intend that their specific findings of facts should be destroyed by a general finding in seeming conflict therewith. Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015, 1019.

Appellants next assail the verdict and judgment on the ground that the trial court erred in permitting the attorney for the defendant to repeatedly ask witnesses for plaintiffs improper questions in regard to the wrongdoings and indictments against the witnesses or members of their family.

For the sake of the argument, it may be conceded...