Buick Automobile Co. v. Weaver

• Decision Date: 17 January 1914
• Citation: Buick Automobile Co. v. Weaver, 163 S.W. 594 (Tex. App. 1914)
• Parties: BUICK AUTOMOBILE CO. v. WEAVER.
• Court: Texas Court of Appeals

163 S.W. 594

BUICK AUTOMOBILE CO. v. WEAVER.

Court of Civil Appeals of Texas. Dallas.

January 17, 1914.

Rehearing Denied February 14, 1914.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by James H. Weaver against the Buick Automobile Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry P. Lawther, of Dallas, for appellant. Muse & Gano, of Dallas, for appellee.

RASBURY, J.

Appellee recovered verdict and judgment in the court below against appellant for $5,000 for personal injuries received by appellee when appellee's car operated by appellant's servant was driven into a ditch.

Appellee, in substance, alleged that on the day of the accident he purchased an automobile from appellant, paying therefor $550, on condition that appellant would furnish, at its expense, and as part of the consideration of the purchase of the car, a capable person to instruct appellee how to operate, manage, and control same, appellee being wholly ignorant of the construction of the car, and without knowledge concerning its operation, and that in pursuance of the purchase and agreement appellant placed appellee and his car in charge of one Birdwell, selected by appellant for the purposes stated, and represented by appellant to be thoroughly capable as an instructor, and safe and skillful as an operator. By further appropriate allegations the accident was shown, and serious bodily injuries to appellee resulting therefrom, which were alleged to be the proximate result of the negligence of appellant's said servant, who was in control of the automobile and operating same at the time for appellee's instruction.

After the general denial appellant, in answer to the appellee's petition, by special plea averred that at the time of the purchase of the car it furnished a driver for appellee at his request to drive the car to Wilmer, appellee's home, several miles distant from Dallas, for the purpose of instructing appellee on the way to Wilmer how to operate same, and for such purpose secured the services of said Birdwell, who was to be under the directions and subject to the orders of appellee, and who was not in the employ of appellant, but who was represented to it to be a competent and careful chauffeur. Appellant further charged that the car was safely delivered at Wilmer, and that the accident occurred thereafter, while said Birdwell was testing the speed of the car at the request, and under the directions of appellee, by reason of which appellee assumed the risk of the accident which followed.

The record sustains in substance the following essential facts: Appellant sold appellee a secondhand car for $550, and agreed to deliver the car at appellee's home in Wilmer, a village in Dallas county, distant several miles from the city of Dallas, and to furnish, as part of the consideration of the purchase, a capable and skillful operator to deliver it, and teach appellee how to operate and control same. No exact period of time was agreed upon between appellee and appellant during which appellee was to receive instructions, although the agent of appellant testified that he told Birdwell to deliver the car at Wilmer, and instruct appellee in its use on the way there, and return on the 5 o'clock train, and is corroborated in that respect by Birdwell, although it is not claimed by either that such directions to Birdwell were known by or communicated to appellee. Deitzel, appellant's agent, testified that he agreed to furnish appellee a man to run the car, and to teach him to run it, and furnished Birdwell for that purpose, but never claimed to appellee that Birdwell was to teach him only as far as the delivery of the car at Wilmer. After reaching the agreement for the purchase of the car, appellee started for Wilmer, with Birdwell driving the car. Before getting without the city limits, one of the tires was punctured, and they returned to Dallas. The next morning the start was made about 11 o'clock. On reaching Wilmer, appellee and Birdwell halted at the home of appellee's brother for dinner. On the way to Wilmer from Dallas appellee says Birdwell operated the car. Birdwell says, after crossing the Trinity river south of Dallas, appellee operated it. What occurred after dinner with appellee's brother was testified to by appellee, W. S. Little, W. T. Whisnant, and Birdwell. The first three are in substantial accord. Birdwell does not agree with any of them. The verdict of the jury authorizes our adoption of the theory of the accident testified to by the first three, which is as follows: After dinner appellee suggested that he and Birdwell go to another brother's, a mile distant from Wilmer. Birdwell assented, remarking that on the way he would instruct appellee how to operate the car. This he did, sitting beside appellee while he was running the car, telling him what to do, and explaining the various parts of the machine and their uses. This was the first instruction given appellee. This journey was made, and the parties returned to Wilmer. On the return appellee's "little" brother asked for a ride; Birdwell urging that they give him one. Those named then started on the second trip, with Birdwell beside appellee on the front seat instructing him how to operate the car. Before leaving Wilmer, the witnesses Little and Whisnant were taken in the car. About one-half mile from Wilmer the road over which the parties were driving turns sharply, and, before resuming its original direction, forms an elbow. On reaching this place, Birdwell cautioned appellee to use care in making the turn, taking hold of the steering wheel at the time, and assisting appellee. Likewise, at the next turn. From the point where the elbow forms, the party continued for about one-half mile to the end of the macadamized road. Here appellee, who was operating the car, told Birdwell that he could not turn the car in order that they might resume their return journey. Thereupon Birdwell changed seats with appellee, took charge of the car, saying he would show appellee how to operate it. He turned the car about, and started in on the return journey, and in...