Carter v. Walker
Decision Date | 23 December 1913 |
Citation | 165 S.W. 483 |
Parties | CARTER v. WALKER. |
Court | Texas Court of Appeals |
Appeal from Bexar County Court; John H. Clark, Judge.
Action by T. S. Walker against H. C. Carter. Judgment for plaintiff, and defendant appeals. Reversed and remanded on rehearing.
Terrell, Walthall & Terrell, of San Antonio, for appellant. T. H. Ridgeway, of San Antonio, for appellee.
Appellee, T. S. Walker, sued appellant, H. C. Carter, for the value of a horse belonging to Walker, and alleged that appellant's servant was negligent in driving his car at a high rate of speed on one of the streets in San Antonio; that appellee was driving along in his buggy, and in order to avoid being struck, or having his horse struck, by appellant's car, he jerked his horse around and threw it down, thereby injuring the horse to such an extent she died. Appellant pleaded, in addition to a general demurrer and general denial, contributory negligence on the part of appellee. The trial resulted in a judgment for appellee in the sum of $150, from which this appeal is taken.
The appellant complains that the court erred in refusing to instruct a verdict for the defendant in the county court, to which the case was appealed from the justice court, and assigns such refusal to instruct, by the county judge, as error.
The case seems to have been tried mainly on the issue as to whether the car which caused the wreck belonged to appellant. Walker testified that it was a big gray car. And substantially: "It is rather downhill." "I don't know whose car it was, only what I have been told."
W. C. Fleming corroborates the plaintiff as to the accident, and says he knew the driver; had seen him before that and has seen him since. He saw the number on the car, and says he saw the car with the same driver in it after that, and the car was No. 278, a big gray car.
Sylvester Simonds (the negro driver) said he was working for appellant at the time of the accident, driving a large gray Stoddard-Dayton auto. It was a seven-passenger car, No. 278, and says he had worked for Mr. Carter six or eight years.
Both Walker and Fleming are positive the car which did the damage to the horse was a large gray auto. Both say the driver was a negro. Fleming says he had seen the negro before and since, and that he was driving the car which did the damage, and the car number is Mr. Carter's. We think the evidence was sufficient, and the court did not err in refusing to instruct a verdict for defendant.
It is true that "the broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his life, or his liberty, upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining, as a question of law, whether the testimony establishes more." In the Joske Case, 91 Tex. 574, 44 S. W. 1059, cited, it was held that the facts did not do more than create a strong suspicion; whereas in this case it is shown that Fleming recognized the driver, knew him before and since the accident. He was driving a big gray car, and was working for Mr. Carter, and had been for six or eight years. The number of the car was that of appellant, and on the same day of the accident the driver was driving appellant's car. We think the evidence was sufficient to justify the finding of the jury, and this assignment is overruled.
The court did not err in refusing special charge No. 2 requested by appellant, which is as follows: "In this case you are instructed that if the horse of the plaintiff fell on account of the fact that the plaintiff pulled the rein too suddenly, if he did so pull it, that it was not necessary under the facts and circumstances, or that a reasonably prudent man would not have thought it necessary, for the plaintiff to have so pulled said rein, if he did, and that said act of pulling the rein, if it was done, was the proximate cause of the accident alleged, then you will find for the defendant." Authorities cited by appellant do not apply to this case. The charge requested ignores the doctrine of imminent peril. "When one person is placed in a perilous position by the wrongful act of another, the person so situated is not required to exercise the same degree of care that a person of ordinary prudence would have exercised." Railway Co. v. Neff, 87 Tex. 303, 28 S. W. 283; Saunders v. M., K. & T. Ry. Co. of Texas, 35 Tex. Civ. App. 383, 80 S. W. 387, and cases cited. Indeed, when a man is borne down upon by a big seven-passenger automobile at the rate of 20 miles per hour, "prudence" and "ordinary care" are about the least of his assets. In Railway Co. v. Neff, 87 Tex. 303, 28 S. W. 283, it was shown that Neff, in crossing the railway in his wagon, would not have been injured if he had stayed in the wagon; but he jumped out of the back end, fell on the track, and was killed. The Supreme Court held that, when it was shown that the railway company was negligent, the fact that Neff acted rashly or imprudently would not relieve the company.
While appellee Walker was on the stand testifying as to a conversation with appellant, his attorney asked: This was objected to as immaterial, and the court instructed the jury not to consider same. Appellee's counsel thereupon stated: He then turned to the jury and said: "Gentlemen of the jury, I will ask you not to consider the answer of Mr. Walker about the insurance upon the car."
Appellant complains that, notwithstanding the court instructed the jury not to consider said remark, and appellant's counsel did the same, it was so prejudicial to his case as to require a reversal of the judgment; and we are referred to a rather fertile field of authorities. In the case of City of Austin v. Gress, 156 S. W. 535, the appellee was on the stand, and attorneys for the city asked if he would submit to an examination, to which he replied that, if the court thought it necessary, he would do so. Attorneys for the city stated that appellant would pay for the examination. Counsel for Gress then asked: "Who do you represent, the city of Austin, or an insurance company?" To which the attorney replied: "We represent the city of Austin." Counsel for the appellee then asked: "Been paid by them?" "That is my business," replied the other attorney, "I generally manage to collect my fees." Thereupon counsel for appellee said: "If you will state that it is not for the benefit of an insurance company—" At this point counsel objected, and the court instructed the jury to disregard the remark. The Court of Appeals reversed the case, because it was apparent that it was the deliberate purpose of the appellee's attorney to get the fact before the jury that there was indemnity insurance to protect the city.
In the case of Levinski v. Cooper, 142 S. W. 961, cited by appellant, there appears also an intent on part of counsel to get the impression to the jury that the appellant was protected by insurance. The persistence of shrewd attorneys in getting these prejudicial matters before the jury can only be remedied by withdrawing the case from the jury and selecting another panel, or for the court to reverse the case. The idea that a court can undo the harm done by information of this kind by merely telling them not to consider such statements is pure fiction. After the serpent has thrown its virus into its victim, it would be just about as effective for...
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