Campbell v. Swinney, 15517

• Decision Date: 17 July 1959
• Docket Number: No. 15517,15517
• Citation: 328 S.W.2d 330
• Parties: G. J. CAMPBELL et al., Appellants, v. Flora SWINNEY, Appellee.
• Court: Texas Court of Appeals

Page 330

328 S.W.2d 330

G. J. CAMPBELL et al., Appellants, v. Flora SWINNEY, Appellee.

No. 15517.

Court of Civil Appeals of Texas, Dallas.

July 17, 1959.

Rehearing Denied Oct. 9, 1959.

William F. Billings, Dallas, for appellants.

D. J. Silman, Bowie, Mullinax, Wells & Morris, Dallas, for appellee.

YOUNG, Justice.

The appeal is from a judgment awarding plaintiff Flora Swinney, a recovery of $4,000, legal interest and costs. The suit was for damages following personal injuries sustained by plaintiff in a collision with a car driven by the minor defendant Glenn Campbell and owned by G. J. Campbell his father; the cause being tried to the court with appeal by both defendants from the joint and several judgment against them.

Place of collision was Belmont, an East and West Dallas street, and Skillman, a North and South street, as plaintiff, a pedestrian, was walking across from the East side of Skillman to the West side at the intersection; the 1951 Nash Rambler car driven by Glenn Campbell striking her as she was about center line of said street. At the request of defendants, the court made and filed findings of fact and conclusions of law; the issues raised by pleading and testimony being generally reflected therein, now quoted:

'Findings of Facts.

1.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion of the accident in question failed to keep a proper lookout as to the plaintiff and such failure was negligence and was a proximate cause of the collision with the plaintiff.

2.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion of the accident in question was operating a vehicle with a defective braking system and his operation of such vehicle was negligence and a proximate cause of the collision with the plaintiff.

3.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion in question failed to turn his vehicle to the right so as to have avoided striking the plaintiff and such failure was negligence and was a proximate cause of the collision with the plaintiff.

4.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion of the accident in question failed to sound his horn so as to warn the plaintiff of the approach of his vehicle and such failure was negligence and a proximate cause of the collision with the plaintiff.

5.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion of the accident in question was operating the vehicle he was driving at a greater rate of speed than a person of ordinary care and prudence would have operated it under the same circumstances and such operation at such speed was negligence and a proximate cause of the collision with the plaintiff.

6.

'The defendant, G. J. Campbell, was negligent in permitting the defendant, Glenn Wesley Campbell, to drive a vehicle with a defective braking system when the defendant, G. J. Campbell, could have, with reasonable inspection discovered the defective braking condition of his vehicle and such negligence was a proximate cause of the collision with the plaintiff.

7.

'The defendant, Glenn Wesley Campbell, at the time and on the occasion of the accident in question was returning from his employment and had borrowed the vehicle he was driving from his father, the defendant, G. J. Campbell, who was the owner of such vehicle, for the express purpose of driving it to and from his employment. The defendant, Glenn Wesley Campbell, was a minor son of defendant, G. J. Campbell, and resided with his father and contributed a portion of his income toward the support of his family.

8.

'That $4,000, if paid now in cash, would reasonably compensate the plaintiff for all of her damages directly and proximately resulting from the collision in question.

'Conclusions of Law.

1.

'That under the facts and circumstances, the defendant Glenn Wesley Campbell owed a duty under the law to keep a proper lookout for the plaintiff.

2.

'That under the facts and circumstances, the defendant Glenn Wesley Campbell, and the defendant, G. J. Campbell, were each negligent as a matter of law for operating and permitting to be operated, respectively, a vehicle with a defective braking system for the reason that such action is in violation of the ordinances of the City of Dallas and of the laws of the State of Texas.

3.

'That under the facts and circumstances, the defendant Glenn Wesley Campbell owed a duty under the law to drive at such speed that he could safely control the vehicle he was driving.

4.

'That under the facts and circumstances, the defendant G. J. Campbell is liable for his failure to reasonably inspect the braking system of his automobile, for, under the law, an automobile with defective brakes or defective braking system constitutes a 'dangerous instrumentality'.

5.

'That under the facts as found, the defendant Glenn Wesley Campbell was an agent of the defendant, G. J. Campbell, his principal, at the time and on the occasion of the accident in question and, the defendant, G. J. Campbell, as principal, is quilty of the same acts of negligence recited in paragraphs 1 through 5 under the Findings of Fact above as is the defendant Glenn Wesley Campbell, his agent, inasumch as the agent's acts of negligence are imputable to the principal.'

The court made no express findings on contributory negligence of plaintiff (pled by defendants), they not excepting to or making request for supplemental findings. These issues will be considered as impliedly found against them under judgment recitals 'that both the facts and the law are with the plaintiff * * *'.

Glenn Campbell, on day of the collision had been unable to get his personal car started; borrowing the father's Nash car to drive to and from work. Campbell Sr. had owned the car for about a week before the accident, it having a 1957 State Inspection sticker, he giving it a thorough driving test before purchase, inclusive of brakes; not noticing anything wrong with car relative to making turns but never having gotten under car to look at brake hose. According to Glenn Campbell, the brakes on the car appeared to operate properly while he was driving it to work; also enroute home, inclusive of traffic light at Skillman & Richmond, one block South of the Skillman-Belmont intersection where he collided with plaintiff; that upon observing Mrs. Swinney crossing the street at the latter intersection he put on car brakes and they failed to hold, the brake pedal going all the way down to floor-board. It was later determined that the brake failure was due to a defective flex line or tube carrying brake fluid to left front wheel; the line giving way at a place where such left front tire had rubbed a hole, allowing fluid to escape. Both defendants testified to no prior indication of this weakened flex line, no rubbing feel or noise in the steerage. Officer Cook, police department mechanic, testified that extreme turns to the left would account for wearing of hole in flex hose line, a lug being always attached to front axle to prevent front wheel from making such contact in turning, this car having no stop lug; the defective flex line being perceivable on...