Cantu v. South Texas Transp. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Cantu v. South Texas Transp. Co., 110 S.W.2d 995 (Tex. App. 1937)
• Decision Date: 11 November 1937
• Docket Number: No. 10381.,10381.
• Parties: CANTU v. SOUTH TEXAS TRANSP. CO., Inc.

Page 995

110 S.W.2d 995

CANTU v. SOUTH TEXAS TRANSP. CO., Inc.

No. 10381.

Court of Civil Appeals of Texas. Galveston.

November 11, 1937.

Rehearing Denied December 2, 1937.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Domingo Cantu against the South Texas Transportation Company, Inc. From a judgment for defendant, plaintiff appeals.

Affirmed.

Arthur J. Mandell, of Houston (Bernard A. Golding, of Houston, of counsel), for appellant.

Vinson, Elkins, Weems & Francis, C. M. Hightower, and E. E. Townes, Jr., all of Houston, for appellee.

GRAVES, Justice.

This appeal, in a suit brought by appellant against appellee for damages for personal injuries resulting from a collision of their respective automobiles, alleged to have been caused by the latter's negligence, is from a judgment in appellee's favor, entered by the trial court upon a jury's verdict in response to special issues submitted to it; the verdict had found both parties negligent in some respects, each of which constituted a proximate cause of the collision, that is to say, that appellee had failed to give warning of the backing up of its truck on the occasion, while the appellant had both failed to exercise ordinary care in not stopping his automobile until the appellee's truck had completed its turn in Canal street in the city of Houston, and had also failed to keep a reasonable lookout for the movements of the truck at the time.

In inveighing here against such adverse judgment to him below, the appellant, through the able and considerate Mr. Bernard Golding as his counsel, foregoes all other complaints, and thus in his brief limits his presentments upon the appeal:

"The writer, however, feels that the only question involved concerns that of discovered peril, and has, accordingly, limited this brief to such question. And too, the writer is inclined to the opinion that numerous Assignments of Error beget lengthy and tedious briefs, which, in turn, impose upon a three-judge court not only unnecessary labor, but labor which no intelligent human could expect them to discharge with dispatch.

"Appellant contends that not only the pleadings, but the evidence raise the issue of discovered peril, and by reason thereof, the Trial Court's failure to submit appellant's Special Issues on this score, requires a reversal of this cause."

This opinion, therefore, will likewise be so confined.

It will be noted from the quoted statement, as indeed also appears from the assignments, propositions, and recitations in the motion for a new trial below, the sole question presented in this court is, whether or not the trial court's failure to submit to the jury the specific special issues affecting the claimed issue of discovered peril appellant tendered was reversible error; these issues were seven in number, but each and all of them omit one of the indispensable requisites of the defense of discovered peril, that is, actual discovery by the appellee of appellant's perilous position in time to have, by the exercise of ordinary care in using the means at hand, consistent with the safety of appellant's driver and truck, avoided the collision; they were, therefore, fatally defective and were properly refused. Northern Texas Traction Co. v. Singer (Tex. Civ.App.) 34 S.W.2d 920; Texas Electric v. Kinkead (Tex.Civ.App.) 84 S.W.2d 567, writ of error dismissed; Northern Texas Traction v. Weed (Tex.Com.App.) 300 S. W. 41; Northern Texas Traction v. Thetford (Tex.Com.App.) 44 S.W.2d 902; Gersdorf-Sloan Ambulance Service v. Kenty (Tex.Civ.App.) 46 S.W.2d 469; Woodward v. Murphy (Tex.Civ.App.) 29 S.W.2d 828, writ of error refused.

Were the complaint in this court one against the trial court's failure to charge at all upon that issue after a tender to it of these seven inquiries relating thereto, perhaps a different question would be involved; but since the challenge both below and here was specifically limited to a declination of the court to give the specific proposals submitted, the matter properly ends there; in the next place, it is not thought that, under all the settled authorities in Texas, either the appellant's pleadings or proof in the first instance properly raised the defensive issue in his behalf of discovered peril, in that his sole pleading touching it was this:

(1) "(g) In then and there negligently failing to use all reasonable means at hand or utmost efforts in that behalf, either or both, consistent with the safety of said truck, and the driver thereof, to avoid such collision after making actual discovery of the danger and eminence thereof, and that plaintiff driving said automobile was in a position of peril from which he could not, or probably would not extricate himself in time to escape from such collision."

The mere reading of this averment is sufficient to disclose the omission of the requisite affirmative statements that appellant was in a perilous position, that appellee discovered his plight of peril in time to have avoided the collision, by the exercise of ordinary care in using all the means at its hand consistent with the safety of its driver and truck after such discovery, and that its failure was the proximate cause of the collision; that the appellee failed to exercise ordinary care in such imminent circumstances, although it had in fact discovered such peril in time to have prevented the collision, had it done so.

Wherefore, the pleading failed to meet the requirements of our holdings in that behalf. Baker v. Shafter (Tex.Com.App.) 231 S.W. 349; Galveston H. & S. A. Ry. Co. v. Price (Tex.Com.App.) 240 S.W. 524; Ball v. Youngblood ...