Coon v. Manley

• Decision Date: 21 May 1917
• Docket Number: (No. 8646.)
• Parties: COON v. MANLEY.
• Court: Texas Court of Appeals

196 S.W. 606

COON v. MANLEY.

(No. 8646.)

Court of Civil Appeals of Texas. Ft. Worth.

May 21, 1917.

Rehearing Denied May 12, 1917.

Appeal from District Court, Tarrant County; Mike E. Smith, Special Judge.

Action by H. C. Manley against Elmo Coon. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kearby & Cooper, of Ft. Worth, for appellant. Simpson & Estes and Chas. T. Rowland, all of Ft. Worth, for appellee.

CONNER, C. J.

This is an appeal from a judgment in appellee's favor for the sum of $2,500 as damages for personal injuries caused in an automobile accident. Briefly stated, the accident occurred in the middle of the 2800 block of Hemphill street in the city of Ft. Worth. Hemphill street runs north and south. At the place mentioned, a street car company had placed a switch in its street car line for the free passage of its street cars. Appellee was a conductor on one of the street cars, and on the occasion in question had operated his car going north and driven in on the switch on the east side of the street, where he stopped his car and awaited the oncoming of a south-bound car. Appellee left his car, crossed the street, and went directly east to get a drink of water in an adjacent yard. The distance between the car and the curb of the street at this point was but some 12 or 15 feet. After securing the drink, appellee, as there is evidence to indicate, hurriedly returned in the direction of the car, crossed the cement walk onto and across the curbing into the street. As he was taking his second step, appellant's automobile collided with him and knocked him down, and he was injured. The time that this occurred was about 9:30 o'clock at night. The evidence does not disclose whether there were any street lights, or to what extent, if any, the car lights illuminated the situation. It does appear, however, that the lights upon appellant's automobile were burning. It further appears that, as appellant approached the street car, he retarded the speed of his automobile, as some of the witnesses testified, to 4 or 5 miles an hour by the time it reached the south end of the street car, and, as he testified, to not exceed 8 miles per hour. Appellant did not blow his horn, testifying that he was looking forward along the street to see if any person appeared coming around the front end of the car. Appellant further testified that he did not see appellee until just as he stepped in front of his auto, whereupon he immediately applied the brakes.

The evidence tends to show that, after the brakes were applied, the car did not go more than 5 or 6 feet forward. The evidence further tended to show that there were some shade trees between the sidewalk and curbing over which appellee proceeded that cast a shadow. The wife of the appellant noticed the appellee as he was approaching the street, but thought that he would stop at the curb. The evidence does not disclose whether she called to the attention of her husband, who was driving the car, the fact of appellee's approach, and appellee, himself, testified that he did not look to see whether the car was approaching. His language on this point is as follows:

"As I was coming back, I never heard any fuss or anything until just as I stepped off the curbing, when an automobile hit me and knocked me to the middle of the car, and threw me on all fours, and then I got up and it hit me again, and knocked me from about the middle to the front vestibule door. * * * I had just stepped off into the street and was starting to make the second step — I never measured the distance I stepped, but I suppose it is 2 or 2½ feet. After I stepped off the curbing, my feet were on the ground, and I was talking a second step, and my weight was on my right leg. * * * I cannot swear whether that automobile had any lights on it to save my life. I did not look to see, because I did not see any car coming, and it hit me so quick I never had time to look. * * * I never looked to see if any automobile was coming, and I stepped off the sidewalk without looking, and after I took my second step the car hit me. I had no time to look."

Appellant insists under several of his assignments that the evidence shows as a matter of law that appellee was guilty of contributory negligence, and that hence the court should have given a peremptory instruction to the jury. We do not, however, deem it advisable at this time, at least, to pass upon this question, inasmuch as we have concluded that the proceedings upon the trial to be hereinafter noted may have had effect to appellant's prejudice in the deliberations of the jury on the issue of appellee's contributory negligence, as well also as upon the issue of appellant's negligence, which was submitted...