Cannady v. Dallas Ry. & Terminal Co.

• Decision Date: 15 April 1949
• Docket Number: No. 15022.,15022.
• Citation: 219 S.W.2d 816
• Parties: CANNADY v. DALLAS RY. & TERMINAL CO.
• Court: Texas Court of Appeals

Page 816

219 S.W.2d 816

CANNADY v. DALLAS RY. & TERMINAL CO.

No. 15022.

Court of Civil Appeals of Texas. Fort Worth.

April 15, 1949.

Appeal from District Court, Dallas County; R. C. Slagle, Jr., Judge.

Action by Lon Cannady against the Dallas Railway & Terminal Company for personal injuries and property damages. Judgment for defendant, and plaintiff appeals.

Affirmed.

Caldwell, Baker & Jordan and Russell M. Baker, all of Dallas, for appellant.

Burford, Ryburn, Hincks & Ford and Howard Jensen, all of Dallas, for appellee.

SPEER, Justice.

Lon Cannady sued Dallas Railway & Terminal Company for personal and property damages sustained in a collision between his Ford truck and a street car at a street intersection in the City of Dallas, Texas.

No question is raised here challenging the sufficiency of the pleadings. Trial was to a jury on special issues.

All acts of primary negligence and contributory negligence were properly pleaded. The issues and their answers reveal the contentions of the respective parties. The jury verdict convicted defendant of several acts of negligence proximately causing the collision and acquitted it of other acts charged by plaintiff. Defendant charged plaintiff with contributory negligence in several respects; the jury acquitted him of all except one. Plaintiff moved the court to disregard the unfavorable questions and answers and that judgment be entered for him on the remainder of the verdict. The motion was overruled and a take nothing judgment was entered against plaintiff on the verdict. This appeal followed.

The jury verdict found defendant negligent, proximately causing the accident, in the following matters: (2) Operating the street car at a greater rate of speed than a person of ordinary care would have operated it immediately prior to the accident; (5) failing to stop the street car immediately before entering the intersection; (6) failing to yield the right-of-way to plaintiff; and (7) failing to keep a proper lookout. There was a finding that the accident was not an unavoidable one.

As against plaintiff it was found (10) he failed to keep a proper lookout after he entered the intersection, and by (11) such failure was a proximate cause.

The jury found the amount of damages sustained by plaintiff to his truck, for doctor's bills and for personal injuries.

It is the settled policy of our law that negligence by an injured party which proximately causes his injury precludes a recovery although it was shown that the defendant was guilty of negligence and proximate cause. It has been held that contributory negligence and proximate cause are an absolute defense to an action for injuries sustained. 30 Tex.Jur. 754, sec. 88. When discovered peril is involved the general rule is altered.

The first three points of assigned error complain of the court overruling plaintiff's motion to disregard the answers to special issues 10 and 11, above pointed out, because, (a) "as a matter of law no causal connection is shown to exist between plaintiff's failure to keep a proper lookout after he entered the intersection and the resulting collision"; (b) the jury having found under other special issues that plaintiff kept a proper lookout before entering the intersection, that defendant failed to yield the right-of-way to plaintiff, that when plaintiff entered the intersection the street car had not entered it, plaintiff's failure to keep a proper lookout after he entered the intersection could not, as a matter of law, be a proximate cause of the collision; and (c) the evidence was insufficient to support the answers to either of the issues 10 and 11.

The court's charge contained the often approved explanation of "proximate cause." The explanation contained such elements as "new and independent cause" and "foreseeableness." The court instructed the jury that there may be more than one proximate cause.

Not every act of negligence is a proximate cause of an occurrence. Many times there may be more than one proximate cause. As a general rule whether or not an act is a proximate cause becomes an issue of fact for jury determination.

Under applicable rules of law in this state, whether or not certain acts constitute negligence or contributory negligence are fact issues; each is to be determined by the standard of ordinary care. 30 Tex.Jur. 756, sec. 90. It has been held that proximate cause, like negligence, is an issue of fact to be determined by the jury if one is had. 30 Tex.Jur. 723, sec. 62.

It is the settled law in this state that a failure to keep a proper lookout can only be deemed a proximate cause of an accident when it appears that the keeping of such lookout would have prevented the accident which followed. Texas & Pacific Railway Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049. This rule has been consistently followed by our courts.

Plaintiff testified that he stopped at the intersection and looked both to his right and left and the jury found that at that time he was keeping a proper lookout. Plaintiff further testified, substantially, that when he stopped at the interesection and looked to his right he saw the street car leaving the next intersection a block or about 300 feet away; that he waited until the third car passed him going to his right and then pulled up in low gear to the first set of street car tracks and again looked to his right and saw the street car coming about 150 feet and "figured" it was going at least 30 miles per hour; that he then shifted into second gear to go on through and that was the last thing he remembered.

It is quite obvious that the jury disbelieved plaintiff's statement in which he said he looked at the street car a second time and saw it 150 feet away. The testimony of a party to a suit, as was plaintiff in this case, only raises a jury issue. Simmonds v. St. Louis B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50. There are circumstances and other direct testimony which tend to contradict plaintiff's theory that he looked the second time.

It seems that Main Street is approximately 50 feet wide; that there are parallel car tracks on it; that the first set of tracks crossed by plaintiff were about 14 feet from the curb line; that a pair of car tracks are 4½ feet apart and the outside rails of each pair are about 5 feet apart. It follows that it was only 9 feet from where plaintiff said he was when he looked the second time and saw the street car 150 feet away to where he was struck. A Mr. Jeffers testified at the instance of plaintiff; he said he saw the accident; at one time he testified favorable to some of plaintiff's contentions but being confronted with a signed statement which he had made three days after the accident, which happened over two years prior to the trial, he admitted his recollection about the transaction at that time was better than when the trial was had and that he had said in the statement that the street car bell first attracted his attention immediately before the accident and at that time the car and the truck were not over 10 feet apart. A Mr. Hendricks was called by defendant; he said he saw the accident and that when he first observed them the truck and the street car were each traveling 8 or 10 miles per hour and were then 8 or 10 feet apart. The claim agent of defendant testified that he talked to plaintiff next day after the accident and in substance said plaintiff told him he saw the street car coming about 25 feet away and that it was traveling at least 40 miles per hour and at that time plaintiff said he thought he had enough time to beat it. The witness said he wrote those statements down at the time and at plaintiff's request his wife signed it for him. Joe Pickens, the operator of the street car, said he was involved in the accident which occurred in November, 1945; that the car he was operating was between 35 feet and 44 feet long; that Oakland Street, where the accident happened, was not a passenger stop; that in the middle of the block he was going about 15 miles per hour; that as he approached Oakland Street he shut off his power and "pinched" down on the air as his rules required; that he saw plaintiff's truck about 25 feet before it reached Main Street and that his street car was about the same distance from Oakland Street; that a passenger stood on the corner and witness rang his bell to inform the passenger he did not stop. The witness said after he had slowed down to enter the intersection he turned the current on again 4 or 5 feet from the line of Oakland Street and that it was then he saw plaintiff was going on through; that he then reversed his power, applied his air brakes and sanded the rails; he explained how quickly this could be done; that he made an emergency stop; that in emergency stops the wheels will slide some on the steel rails. Two passengers on the street car said it slowed down as it approached Oakland Street and came to a very sudden stop at about the time of the collision.

In determining if a motion to disregard a verdict should be sustained the court will view all the testimony in the light most favorable to the verdict and if when done there is evidence of probative value to support the verdict the motion to disregard will be overruled. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224; Rodriguez v. Higginbotham-Bailey-Logan Co., 138 Tex. 476, 160 S.W.2d 234.

In his motion for judgment non obstante veredicto, plaintiff urged that under the circumstances of this case he was under no duty to keep a lookout after he entered the intersection. We cannot assent to this doctrine. The only reason to impose upon him the duty to keep a lookout before entering the place of danger is because of the hazard incident to it. To say that he looked before entering certainly would not license him to close his eyes and barge through an intersection where there was obviously a known danger. In the circumstances...