City of Pampa v. Todd

• Decision Date: 20 May 1931
• Docket Number: No. 3523.,3523.
• Citation: 39 S.W.2d 636
• Parties: CITY OF PAMPA v. TODD et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

39 S.W.2d 636

CITY OF PAMPA v. TODD et ux.^*

No. 3523.

Court of Civil Appeals of Texas. Amarillo.

May 20, 1931.

Rehearing Denied June 10, 1931.

Appeal from District Court, Gray County; Clifford Braly, Judge.

Action by F. F. Todd and wife against the City of Pampa. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Cook, Smith & Teed, of Pampa, for appellant.

W. M. Lewright, Ben S. Baldwin, and B. L. Parker, all of Pampa, for appellees.

RANDOLPH, J.

This was a suit to recover damages filed by appellees against appellant for the negligent death of their daughter Mickey Todd. This is the second appeal in this case. See (Tex. Civ. App.) 11 S.W.(2d) 247 for opinion on the former hearing, in which a statement of the case is made which is here adopted so far as it is applicable. Additional statements will be made as necessary.

The appellant, having pleaded that Lunsford, the operator of the car, was guilty of negligence in driving a Ford coupé with four grown people therein and that the deceased, Mickey Todd, was guilty of contributory negligence in riding in a Ford coupé while the same contained four grown people, appellant alleges that it was error for the court to allow appellees' witnesses to testify that it was more or less a common sight to see four people riding in Ford coupés.

The jury found that Lunsford was not guilty of negligence in undertaking to operate the coupé with three other persons in the car with him, and that the deceased, Mickey Todd, was not guilty of negligence in riding in the coupé in which she was riding when same was occupied by three other persons beside herself. In passing upon these questions of negligence, it must be remembered that the court had defined negligence and proximate cause, ordinary care, etc., in his charge to the jury. The evidence does not show that the deceased, while traveling in the coupé, was directly or in any way controlling its movements and that the sole charge of negligence against her was her presence in the coupé with three other persons.

Whether or not the presence of four people riding in a coupé was negligence, and where deceased was charged with contributory negligence and the driver of the car was also charged with negligence, depends on the circumstances of the case. This may or may not be negligence, according to whether or not it was customary for four persons so to ride. Evidence of its being customary for people to ride four in a coupé was admissible to meet the charge of contributory negligence brought against deceased. Missouri, etc., Ry. Co. v. Crane, 13 Tex. Civ. App. 426, 35 S. W. 797.

To rebut an allegation of a want of due care in a particular case, evidence of a general usage or custom is admissible to show what is due care as applied to a particular case. Barnes v. Zettlemoyer, 25 Tex. Civ. App. 468, 62 S. W. 111; Houston, etc., Ry. Co. v. Cowser, 57 Tex. 293; Gulf, etc., Ry. Co. v. Harriett, 80 Tex. 73, 81, 15 S. W. 556.

The witnesses testified that it was a common sight for four persons to ride in a Ford coupé and this tends to offset the charge of negligence. In cases where the question involved is of such a character that the jury will be aided by being advised of the practices of others under like conditions, such evidence is competent, at least where the custom is general or universal, i. e., the purpose of holding this evidence admissible is not that the negligence of the deceased may be excused, but that the jury may be furnished with a guide as to whether or not the conduct charged against her constituted negligence.

The appellant contends that it was reversible error for the court to allow the witness Lunsford to testify that the driving of his car across the ditch would have resulted in wrecking his coupé.

The defendant's exception to the court's action presents a different question from the one stated in its proposition. Lunsford, the driver of the car, after he had testified that when he saw the ditch he attempted to turn his car to the left and thus avoid it, was asked by appellees' counsel:

"Why did you turn your car to the left? A. I did not think that I could make it.

"Q. You did not think you could make what? A. I did not think I could drive across it.

"Q. That is, you thought it would wreck your car?"

To the last question, counsel for the defendant objected for the reason that it was "leading and suggestive and it was not the testimony of the witness."

The objection that the question was leading and suggestive is not the one presented by the proposition. The proposition is that the court erred in permitting the witness to testify that to have driven his car across the ditch would have resulted in wrecking it. We therefore overrule this contention.

The appellant also assigns as error that the witness Rice was permitted to testify, over its objection, that the ditch in question was too deep to cross. The witness testified that he saw the ditch and did not want to cross it and backed up and turned around and went in another direction; that he did not want to cross it; that it was too deep for him to cross.

While the witness gave his conclusions, he also stated a fact which is necessarily his judgment, that the ditch was too deep to drive across.

The appellant further assigns as error that the court erred in refusing to require the witness Lunsford to answer the question of the defendant: "Had it been night and your lights burning, could you have seen where the culvert had been any considerable distance before you got to it?" The plaintiffs objected to this question for the reason that the answer would be a conclusion of the witness which he was not qualified to state and the court refused to permit the witness to answer.

The defendant pleaded that it had not left any ditch by the removal of the culvert from across the street, but only a slight depression in the road which was plainly visible for a considerable distance on either side. It appears from the evidence that the culvert was removed by the employees of the defendant during the afternoon of the day of the accident— which accident occurred that night. It further appears that the witness Lunsford had not seen the ditch at night after the removal of the culvert until he saw it just before the accident, and that he did not then see it until he was within ten to fourteen feet of the ditch; that he did not see it again until next morning, at which time the culvert had been replaced over the ditch. This being shown, to require an answer to a hypothetical question that could only result in the witness guessing and indulging in speculation was improper and we overrule this contention.

The defendant complains of certain excerpts from the argument of the plaintiffs' attorney, which excerpts are as follows:

"I have been on it (this case) about three years. You gentlemen have just been on it about three days. I don't feel and cannot feel that my three years of labor is going to be lost here, although I well know that regardless of the verdict you gentlemen render, the size of it, or anything else, that the City of Pampa is going to appeal the case. I want to ask you gentlemen at the outset in considering this case, to disregard that entirely. Whatever you see fit to allow us and I don't care if it is fifty dollars, or seven thousand five hundred or five thousand dollars, or what it is, the City of Pampa is going to appeal it and keep these people out as long as they can. The evidence in this case shows that they have done it for three years, and I expect they will try to do it for another three years."

"I will say this, that I don't think there is a man on this jury but what knows right down in his heart right now, that regardless as to how this Court has framed these questions, and they are all framed to you in accordance with the law, as to what is right and just about this matter,—and the right and justice of it is that girl's life should be paid for by the people of the City of Pampa, —but, Gentlemen, remember that just as a sample of it, men, they have got the money to fight us...