Cobb Brick Co. v. Lindsay

• Decision Date: 27 May 1925
• Docket Number: (No. 6813.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 1107
• Parties: COBB BRICK CO. v. LINDSAY.
• Court: Texas Court of Appeals

277 S.W. 1107

COBB BRICK CO. v. LINDSAY.

(No. 6813.)^*

Court of Civil Appeals of Texas. Austin.

May 27, 1925.

On Motion for Rehearing October 14, 1925.

Further Rehearing Denied November 25, 1925.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by Mrs. Clara C. Lindsay against Cobb Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Massingill & Belew, Wm. J. Berne, and Thompson, Barwise & Wharton, all of Fort Worth, for appellant.

R. E. Rouer and Gillis A. Johnson, both of Fort Worth, for appellee.

BLAIR, J.

Appellee, Mrs. Clara C. Lindsay, surviving widow of William Landon Lindsay, sued appellant, a private corporation, to recover damages sustained by reason of her said husband's being killed as a result of injuries received in a collision between a motorcycle on which he was riding and an automobile truck being used by appellant in the pursuit of its business.

A jury trial was had upon special issues, and upon their findings and the undisputed evidence the trial court rendered judgment for $15,250, consisting of two items — $250, the value of the motorcycle destroyed in the collision, and $15,000 damages suffered by reason of the death of appellee's husband. The appeal is from this judgment.

The collision occurred at the intersection of North Fifteenth street and Lee avenue, in the city of Fort Worth. Appellee alleged the following grounds of negligence on the part of appellant: (a) That during the time immediately approaching the intersection of the streets, appellant, its agents, servants, and employés failed to give any signal or warning of its intention to turn at the intersection of said streets, but did suddenly turn its said automobile truck to the left on Lee avenue without giving any warning whatsoever. (b) That appellant, its agents, servants, and employés, in approaching said street intersection, carelessly and negligently failed to keep a proper lookout to see that the way was clear before making a turn there. (c) That appellant, its agents, servants, and employés, carelessly and negligently cut the corner at the street intersection, in that it failed to pass to the right of and beyond the center of the intersecting street before turning the truck to the left. (d) That appellant carelessly and negligently operated its vehicle, in that it failed to keep a proper lookout for approaching vehicles, failed to sound any signal or warning before making a turn at the street intersection, and failed to indicate its intention to turn at the street intersection.

Appellant's answer consisted of a general demurrer and several special exceptions, which were overruled, a general denial, and a plea of contributory negligence.

Appellant's first two propositions complain of the action of the trial court in overruling its general demurrer and in refusing to peremptorily instruct a verdict for it. By these two propositions appellant raises the constitutionality of subdivision 2 of article 4694 of Revised Statutes, as amended in 1913, which provides that an action for actual damages on account of injuries resulting in death may be brought—

"2nd. When the death of any person is caused by the wrongful act, neglect, unskillfulness or default of another person or corporation, their agents or servants."

As applied to natural persons, this particular act has been declared to be unconstitutional. In the recent case of Sid Westheimer Co. v. Piner, 263 S. W. 578, Section A of the Commission of Appeals held the act in question valid as applied to corporations, regardless of its invalidity as applied to natural persons. Since appellant here is a corporation, this decision conclusively decides these two propositions against it.

The third proposition is that the court erred in defining proximate cause as follows:

"Proximate cause, as used in this charge, means the efficient cause without which the injury in question would not have occurred, and, in order for a negligent act or omission to constitute the proximate cause of an injury, the facts must be such that at the time of the negligent act or omission in question it might reasonably have been foreseen in the light of the attending circumstances that such negligent act or omission would result in the said injury or some similar injury."

Appellant frankly concedes that the Supreme Court has approved this definition, but contends that proper care and precaution has not been exercised in defining this important term. The gist of appellant's contention seems to be that, in applying the definition to the questions to which it related, the jury could have fairly taken the position that appellant's truck driver was required to exercise the very highest degree of care to have reasonably foreseen from his act or omission alleged that the collision would result, whereas the law only imposed the exercise of ordinary care. We do not find the definition susceptible of such construction, and the proposition is overruled. In the court's definition it uses the following language: "It might reasonably have been foreseen in the light of the attending circumstances." Appellant contends that it should have been "foreseen by a person of ordinary prudence in the light of attending circumstances." Probably appellant's definition is more illuminating; but we see no material difference in the definitions, and we are sure that the one given by the court is not incorrect. In support of that view, see Railway Co. v. Turner (Tex. Civ. App.) 138 S. W. 1126; Freeman v. Swan (Tex. Civ. App.) 143 S. W. 724; Railway Co. v. Byrd, 40 Tex. Civ. App. 315, 89 S. W. 991.

Appellant's fourth proposition predicates error upon the refusal of the court to give its special charge defining proximate cause, which was presented in connection with its objection to the definition given. It follows from what was said in disposing of the third proposition that this one is also overruled.

Appellant's fifth, sixth, and seventh propositions relate to the giving of special issue No. 5, which reads:

"Was it negligence, if any, on the part of the driver of the truck in question to fail to run his truck beyond the center of the intersection of Lee avenue and North Fifteenth street, and to pass to the right thereof before turning his vehicle to the left, if you find from the evidence that he did fail to run beyond the center of said intersection and pass to the right thereof before turning his truck to the left?"

The specific complaint is that the court should have given appellant's special instruction in connection with this issue, informing the jury of the legal right of its truck driver to cut the corner at the left on Lee avenue to avoid an impending collision. We find no evidence in the record that the truck driver made the turn to avoid a collision with appellee's deceased husband. The truck driver testified:

"As I was going west on Fifteenth street, I wanted to turn south on Lee avenue, and my eyes were in front, watching ahead. Just before I approached the street I looked back to see that the rear was clear to make my turn in. As I did so, I began to turn in, and I looked ahead again. I turned in, and I saw this man on the motorcycle just about where the sidewalk would come off into the street ahead of me.

"I was going west up Fifteenth street, and started to look back — I was going to turn south on Lee avenue. I turned my head around to the west, and I saw this man on the motorcycle, and I was just about to the sidewalk on the west line of Lee avenue. That would make him a little bit southwest from me. I had made this turn, and was in the act of turning to the south on Lee avenue. I then looked up and saw him. He was coming due east. At that time I was headed southwest. I was 7 or 8 feet from that southeast corner of the block when I saw him, and was headed southwest."

So, according to the driver's testimony, he did not cut the corner to avoid a collision, and it was not error to refuse the special charge. In fact he positively swears on both direct and cross examination that he had made the turn in question before he saw the motorcycle approaching, and therefore could not have made the cut-in to have avoided a collision with a vehicle which he did not see.

Appellant's eighth and ninth propositions complain that special issue No. 1 assumes the existence of a legal duty of its truck driver to give a visible signal of his intention to turn at the place of the collision. Special issue No. 1 reads:

"Immediately before the accident in question, did the driver of the truck, as he was approaching the crossing of Lee avenue and North Fifteenth street, give any visible signal of his intention to turn and change his said course to the left? Answer `Yes' or `No.'"

In connection with special issue No. 1, the court submitted the following issues:

"Was the failure, if any, of the driver of the truck to give a visible signal as he was approaching said crossing, and before making a turn on Lee avenue, if you find that he did fail to give such visible signal, negligence as that term has hereinbefore been defined to you in this charge? Answer `Yes' or `No.'"

"Was the failure of the driver of the truck to give a visible signal as he was approaching the intersection of Lee avenue and North Fifteenth street, and before making the turn to the left, if you find that he did fail to give any visible signal, a proximate cause, as that term has hereinbefore been defined, of the accident in question? Answer `Yes' or `No.'"

Appellee's cause of action in this respect is based upon the alleged negligence of the truck driver to give warning of his intention to make a turn at the intersection of the streets where the injury occurred. It was also alleged in this connection that the failure to give a signal of intention to turn was violative of article 820k of the state Criminal Statutes. It is clear that the trial judge did not consider the penal law mentioned in submitting these...