Brown Cracker & Candy Co. v. Castle

• Decision Date: 27 February 1930
• Docket Number: No. 10475.,10475.
• Citation: 26 S.W.2d 435
• Parties: BROWN CRACKER & CANDY CO. v. CASTLE.
• Court: Texas Court of Appeals

26 S.W.2d 435

BROWN CRACKER & CANDY CO. v. CASTLE.

No. 10475.

Court of Civil Appeals of Texas. Dallas.

February 27, 1930.

Rehearing Denied March 29, 1930.

Appeal from District Court, Dallas County; Grover Sellers, Judge.

Action by Eugene Castle against the Brown Cracker & Candy Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

J. Cleo Thompson and W. I. Gamewell, both of Dallas, for appellee.

VAUGHAN, J.

Appellee instituted this suit against appellant to recover damages for personal injuries alleged to have been sustained by him on August 30, 1927, when an automobile being driven by one C. S. Rainwater, an employee of appellant, collided with appellee while he was crossing Houston street toward the Union Terminal Station in Dallas, Dallas county. Appellant answered by general demurrer and special exceptions, general and special denials, and specially pleaded that appellee was guilty of contributory negligence. The case was submitted to a jury on special issues, and on answers thereto the trial court rendered judgment on July 14, 1928, in favor of appellee for the sum of $2,500, together with interest thereon at the rate of 6 per cent. per annum from the date of said judgment.

Following are the findings of fact made by the jury in answer to the special issues submitted: That C. S. Rainwater, at the time of the collision alleged by appellee, was an employee of appellant, and was acting within the scope of his employment; that he caused the car driven by him to collide with appellee on the occasion in question; that appellee was injured at the time and place alleged by him; that the impact by which appellee was injured occurred on the east side of Houston street and was the proximate cause of the injuries sustained by appellee; that said Rainwater failed to give any warning of his approach by the sounding of his horn; that such failure was negligence; that such negligence was the proximate cause of the injuries sustained by appellee; that said Rainwater failed to drive his automobile on Young street beyond the center point of intersection of Young street and Houston street; that such failure was the proximate cause of the injuries sustained by appellee; that said Rainwater failed to keep a lookout for any pedestrians at the time and place of the collision and was negligent in that respect; that such negligence was the proximate cause of the injuries sustained by appellee; that said Rainwater did not discover or realize that appellee was in a perilous and dangerous situation in time to have avoided the injuries sustained by appellee; that $2,500 would reasonably compensate appellee for the injuries sustained by him; that appellee kept such a lookout for approaching vehicles as he walked across Houston street towards the Union Terminal building as would have been kept by a person of ordinary care under the same or similar circumstances; that appellee failed to go to the street intersection before starting across Houston street from the east side thereof to the west side thereof; that in so doing he used that degree of care for his own safety as would have been used by a person of ordinary care and prudence under the same or similar circumstances; that the failure of appellee to go to the street intersection before crossing Houston street was a proximate cause or contributing cause to his injuries; that the injuries received by appellee were not the result of an unavoidable accident; that appellee used that degree of care for his own safety in the manner in which he attempted to cross Houston street as would have been used by a person of ordinary care and prudence under the same or similar circumstances.

The court defined "proximate cause" as follows: "`Proximate cause' means that which in a natural and continuous sequence, unbroken by any new or independent cause, produces the event, and without which it would not have occurred"—to which appellant excepted, on the ground that it failed to submit the issue of foreseeableness or anticipation of the injuries complained of as a result of the negligence charged, and in support of said objection cites the case of Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, in which the rule as to foreseeableness is announced as follows: "When one has violated a duty imposed upon him by the common law, he should be held liable to every person injured thereby, whose injury is the natural and probable consequence of his misconduct; and this liability extends to such injuries as might reasonably have been anticipated, under ordinary circumstances, as a natural and probable result of the wrongful act." And the following authorities approving the doctrine announced in the Seale Case: Railway Co. v. Bigham, 90 Tex. 223, 98 S. W. 162; Dallas Ry. Co. v. Warlick (Tex. Com. App.) 285 S. W. 302; San Antonio & A. P. Ry. Co. v. Behne (Tex. Com. App.) 231 S. W. 354; Turner v. Stoker (Tex. Civ. App.) 289 S. W. 190; Enterprise Co. v. Alexander (Tex. Civ. App.) 6 S.W.(2d) 423. Therefore it may be accepted as the settled law in this state that, in any suit for damages resulting from the violation of a duty imposed by the common law, the liability of one sought to be charged on account of such negligence extends only to such injuries as might reasonably have been anticipated under ordinary circumstances as the natural and probable result of a wrongful act, and that such rule is limited to cases resting upon the violation of a duty imposed by the common law, and does not apply to the violation of a penal statute which is negligence as a matter of law, and where such negligence is the proximate cause of the injury alleged; it being assumed that one violating a criminal statute whereby an injury results to another ought to have foreseen the natural and probable consequences of such an unlawful act. Appellant's assignments based on the giving of said definition are overruled.

Appellant takes the position that: (1) subdivision "G" of article 801 of the Penal Code, which provides: "All vehicles approaching an intersection of the public highway with the intention of turning thereat shall, in turning to the right, keep to the right of the center of such intersection and in turning to the left, shall run beyond the center of such intersection, passing to the right before turning such vehicle to the left," does not by its terms define the duty of the driver of an automobile in approaching the terminus of a street with the intention of turning to the left on the street into which it empties, so that the finding by the jury in the latter situation that appellant's employee "failed to drive the automobile on Young Street beyond the central point of intersection of Young Street and Houston Street before turning to the left on Houston Street" was not a finding by the jury of negligence on the part of appellant upon which the court could render judgment for appellee. And (2) that, where one street terminates at another, rather than intersects it, and there is no evidence as to where the central point of intersection, if any, of the two streets is, a finding by the jury that appellant's employee "failed to drive the automobile on Young Street beyond the central point of intersection of Young Street and Houston Street before turning to the left on Houston Street" is not supported by any competent testimony in the case.

The testimony in reference to the location of Houston and Young streets established the following facts: Said streets are located in the city of Dallas, Dallas county, the course of Houston street being north and south and passing immediately in front of the Union Terminal Station, while the course of Young street runs east and west. Young street does not cross Houston street, in that it does not continue beyond the east line of Houston street, but terminates or empties into Houston street at said point of contact between said streets; in other words, joins Houston street at said point of termination of Young street.

This situation, we think, is clearly within the provisions of said subdivision "G" and required the automobile driven by Rainwater, in approaching from Young street the point of contact between Houston and Young streets, for the purpose of entering Houston street, to observe its requirements. This because the statute was enacted for the purpose of regulating and controlling the movement of traffic from one street to another whether for the purpose of turning at a "crossing of streets," as that term is commonly understood, or for the purpose of passing from a street that empties into a street being approached for the purpose of turning within the territory made by the contact of said streets common to both—to illustrate, the territory necessary to be used in passing from Young street into Houston street, and in passing from Houston street into Young street, is the common territory of said streets for the fixing of the center of their intersection, being the territory occupied by said streets the same as if they in fact crossed each other; the width of Young street at the point where it empties into Houston street for the purpose of travel passing from Young into Houston street would be considered as if its width passed across Houston street to its west boundary line (where of necessity it terminates on account of the buildings occupying the space immediately beyond the west line of Houston street), and the width of Houston street thus occupied by the width of Young street in effect extending at this point of contact from the east line to the west line of Houston street constitute the space common to both streets, within which is located the center of the intersection of said streets, or of an intersection of the public highway. Thrush v. Lingo Lbr. Co., 262 S. W. 551, in which this court held that the term "intersection," as used in said section "G," "has reference...