Campbell v. Johnson

• Decision Date: 19 January 1927
• Docket Number: (No. 727-4655.)
• Citation: 290 S.W. 526
• Parties: CAMPBELL v. JOHNSON.
• Court: Texas Supreme Court

290 S.W. 526

CAMPBELL v. JOHNSON.

(No. 727-4655.)

Commission of Appeals of Texas, Section B.

January 19, 1927.

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

Action by J. J. Johnson against E. V. Campbell. Judgment for plaintiff was affirmed by the Court of Civil Appeals (284 S. W. 261), and defendant brings error. Affirmed.

Chamberlain, Green & Wade, of Dallas, for plaintiff in error.

Wm. Cramer and Roger Lewis, both of Dallas, for defendant in error.

POWELL, P. J.

The general nature and result of this case have been accurately stated by the Court of Civil Appeals as follows:

"J. J. Johnson sued E. V. Campbell for damages for injuries to his automobile, caused by collision with a car belonging to appellant.

"The collision occurred at the intersection of Abbott street and Mockingbird Lane in the city of Dallas, and, at the time, appellant's car was driven by his wife; appellee was driving his own car.

"Appellee alleged, in substance, that the collision occurred on account of the negligence of the wife of appellant. Appellant's defense was, the general issue and contributory negligence on the part of appellee.

"The jury found in response to special issues that the wife of appellant was guilty of negligence, proximately causing the injury, and that the difference in the cash market value of the automobile immediately before and immediately after the injury was $1,873.05; also that the reasonable cash value of the cost of the material and labor necessary to replace the damaged parts was $1,873.05.

"The jury also found that appellee on the occasion was guilty of contributory negligence, but that such negligence was not the proximate cause of the collision.

"On these findings the court rendered judgment in favor of appellee for the sum of $1,873.05, from which this appeal is prosecuted.

"The findings of the jury in response to special issues as above stated were, in our opinion, authorized by the evidence and are adopted as our conclusions of fact."

The Court of Civil Appeals affirmed the judgment of the district court. See 284 S. W. 261.

In this case the writ of error was granted upon the third assignment in the application. Said assignment related to a ruling by the Court of Civil Appeals which was in apparent conflict with several decisions of the Supreme Court, as we shall hereafter show. In connection with that assignment, we quote from the opinion of the Court of Civil Appeals as follows:

"Appellant, in assignments Nos. 13 to 18, inclusive, complains of the court's refusal to submit to the jury, at his request, certain special issues on contributory negligence.

"In special issues Nos. 1, 2, and 3, refused by the court, the jury was requested to find whether or not appellee, in approaching the place of collision, was guilty of negligence in the speed at which he operated his car, and, if so, whether the same proximately contributed to the collision; and in issues 4, 5, and 6, refused by the court, the jury was requested to find whether or not appellee, on the occasion, negligently turned or swerved his car so as to collide with the car being driven by appellant's wife, and, if so, whether such negligence contributed to the collision.

"Appellant's plea, and the evidence adduced on the issue of contributory negligence, were sufficient, in our opinion, to require the giving of these charges, unless the submission of same was rendered unnecessary in view of the main charge of the court.

"The court defined contributory negligence as follows:

"`You are instructed that by the term "contributory negligence," as herein used, is meant that, while the plaintiff was operating the car in question he must exercise for his own safety that degree of care that would be used by a person of ordinary care and caution under the same or similar circumstances, and the failure, if any, to use such care would be contributory negligence.'

"The court also correctly defined `proximate cause,' and submitted the following:

"Special issue No. 3: `Was the plaintiff J. J. Johnson, guilty of contributory negligence on the occasion in question as that term is defined in this charge?' To which the jury answered, `Yes.'

"Special issue No. 4: `Was the contributory negligence of the plaintiff, if any, the proximate cause of the damage, if any, to plaintiff's automobile?' To which the jury answered: `No.'

"The jury, in answer to the issue submitted by the court, having found plaintiff guilty of contributory negligence on the occasion, appellant could not possibly have obtained a more favorable verdict if the requested charges had been given and answered in the affirmative. The further finding of the jury to the effect that the contributory negligence of appellee was not the proximate cause of the collision effectually determined that issue against the contention of appellant.

"We find no error in the court's refusal to give the special charges, in view of the issues on contributory negligence submitted in the main charge and the answers of the jury thereto."

In the main charge of the court, proximate cause was defined in general terms as follows:

"You are instructed that by the term `proximate cause,' as it is used in this charge, is meant such a cause as would in a natural, unbroken, and continuous sequence, without the intervention of a new or independent cause, produce a result, and without which the result would not have occurred, and from which such result or some like result might reasonably have been foreseen or anticipated."

The first three special issues requested by plaintiff in error, and refused, read as follows:

"On the occasion of the collision in question was J. J. Johnson, in approaching the place of the collision, as well as at the place of the collision, considering all the circumstances and sur-soundings at or near the place of the collision, traveling at a high, excessive, and dangerous rate of speed? Answer this question `Yes' or `No.' Answer: ____.

"Special Issue No. 2: Did the plaintiff, J. J. Johnson, on the occasion of the...