Dallas Railway & Terminal Co. v. Guthrie

• Decision Date: 31 October 1947
• Docket Number: No. 14875.,14875.
• Citation: 206 S.W.2d 638
• Parties: DALLAS RAILWAY & TERMINAL CO. v. GUTHRIE.
• Court: Texas Court of Appeals

206 S.W.2d 638

DALLAS RAILWAY & TERMINAL CO. v. GUTHRIE.

No. 14875.

Court of Civil Appeals of Texas. Fort Worth.

October 31, 1947.

On Suggestion of Remittitur November 7, 1947.

Rehearing Denied December 12, 1947.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Suit by A. F. Guthrie against Dallas Railway & Terminal Company, to recover damages for personal injuries sustained by plaintiff in collision between his automobile and defendant's street car. From a judgment for plaintiff, defendant appeals.

Judgment reformed pursuant to remittitur and as reformed affirmed.

Burford, Ryburn, Hincks & Ford, Bruce Graham and Howard Jensen, all of Dallas, for appellant.

Touchstone, Wight, Gormley & Touchstone and O. O. Touchstone, all of Dallas, for appellee.

HALL, Justice.

Appellee, A. F. Guthrie, brought this suit in the District Court of Dallas County, Texas, for personal injury damages sustained as the result of a collision between appellant's street car and appellee's automobile. Judgment was rendered for appellee in the sum of $42,500 based on jury findings. The appellant has perfected this appeal by submitting nine points of error.

In answer to issues, the jury found the following facts favorable to the appellee, which were negligence and a proximate cause of the injury:

The motorman of the westbound street car failed to keep a proper lookout; such westbound street car was being operated at a speed of 30 miles per hour or over; such street car was being operated at an excessive rate of speed; that the operator failed to sound or ring the bell; that the operator failed to apply the brakes; that the operator failed to have the street car under proper control; that the appellee was in a position of peril; that the operator of the street car discovered such perilous position but after such discovery and realization he failed to exercise due care; that the operator of the street car gave no signal to appellee before the collision.

On all of the affirmative defenses of appellant, the jury found the following in favor of appellee:

The appellee did not fail to keep a proper lookout on the following: For the westbound street car, before he turned into the intersection, and before he drove upon the street car track. The appellee was not guilty of negligence in failing to permit the street car not involved in the accident to pass before attempting to turn left; that the appellee did not stop his automobile suddenly in front of the street car in question; the appellee did not fail to give a signal of his intention to turn left; that appellee did not stop his automobile immediately before the accident; that appellee did not undertake to pass the westbound street car immediately prior to the collision.

Appellant's point No. 1 is as follows:

The court erred in placing the burden of proof upon appellant to secure an affirmative answer to Special Issue No. 19-A, which inquired whether other traffic upon the street was the sole proximate cause of the collision.

Special Issue No. 19 inquired whether there was other traffic than the street car involved in the accident in or near the intersection of St. Joseph and Bryan Streets where and when the accident occurred, to which the jury answered that there was. Special Issue No. 19-A, the one which appellant complains of because the court erred in placing the burden of proof upon it, is as follows: "Do you find from a preponderance of the evidence that such traffic, other than the street car involved in the accident in question herein, and the plaintiff's automobile, was the sole proximate cause of the accident between defendant's street car and plaintiff's automobile? Answer `Yes' or `No'", to which the jury answered "No."

Appellant duly and timely objected to the form of Special Issue No. 19-A for the reason that it improperly placed upon the appellant the burden of proof to obtain an affirmative answer thereunder, which the trial court overruled. Appellant properly and timely called the court's attention, in paragraph 4 of its amended motion for a new trial, to the effect that the burden of proof was improperly placed on Special Issue No. 19-A.

The facts show that appellee, A. F. Guthrie, was proceeding in a southwesterly direction on Bryan Street in Dallas, Texas, before the collision; that appellant's street car was proceeding in the same direction; that appellee planned to make a left-hand turn on to St. Joseph Street from Bryan Street and testified that he had passed appellant's street car (the one which struck him) some distance east of St. Joseph Street and had stopped on appellant's street car track in order to allow an eastbound street car, owned by appellant, and other traffic on Bryan Street to pass; that he had remained stopped for some time when appellant's westbound street car collided with the rear end of his automobile. Appellant's testimony was to the effect that appellee passed its street car immediately before he reached St. Joseph Street and that he swerved his automobile suddenly into the path of appellant's street car and stopped so suddenly that appellant's operator did not have sufficient time nor distance in which to stop his street car.

The court allowed the appellant to file the following trial amendment: "* * * Defendant denies that there was any traffic in or near the intersection of St. Joseph and Bryan Streets, at the time and on the occasion in question, other than the defendant's westbound street car and plaintiff's automobile. In the alternative, defendant would show to the court that traffic, in addition to plaintiff's automobile and defendant's westbound street car, singly and collectively, was a new and independent cause, and in the alternative a sole proximate cause of the injuries, if any, sustained by A. F. Guthrie, plaintiff herein. * * *" The above alternative pleadings of the defendant are sufficient to raise the issue of sole proximate cause especially in the absence of an exception if the evidence supports such pleadings; which will necessitate a search of the transcript to determine as to whether or not the issue of sole proximate cause should have been submitted to the jury.

It is now the settled law that the burden of proof upon the issue of sole proximate cause rests upon the plaintiff. Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790. The issue on sole proximate cause, submitted in the instant case, placed the burden of proof upon the defendant and if there is sufficient evidence to raise the issue before a jury we will have no alternative but to reverse the case.

The law is well settled to the effect that the act of a third party does not have to be a negligent act in order to require the submission of the issue of sole proximate cause. Fort Worth & D. C. Ry. Co. v. Rowe, Tex.Civ.App., 69 S.W.2d 169; Dallas Railway & Terminal Co. v. Stewart, Tex.Civ.App., 128 S.W.2d 443; Fort Worth & D. C. Ry. Co. v. Bozeman, Tex.Civ.App., 135 S.W.2d 275, writ dismissed, correct judgment.

The act of the third parties solely causing the accident involved in this case could only be the result of the eastbound traffic either being parked or traveling parallel with and in opposite direction with the car of appellee and the street car of appellant, and to make such eastbound traffic the sole proximate cause of the injury, it would have to be of sufficient nature to have caused appellant's westbound street car to run into the rear of appellee's automobile, which was on the street car tracks, with such force that it knocked such automobile diagonally across the street and into a telephone post, thereby breaking the post.

We have searched the record and do not find sufficient testimony to show that neither the operator of the street car nor the operator of the automobile in question could have both been free from negligence which was the proximate cause of the injury. The operator of appellant's street car, to-wit: L. C. Brewer, testified in substance that the appellee was driving along the side of the street car which he was operating, when all of a sudden he whipped over in front of the street car and that they were both going along about 16 miles per hour when the appellee, without warning except the stop lights on appellee's car, began to immediately stop and that his car was all the way from 30 ft. to 50 ft. back of appellee's car and that he immediately threw on the brakes and applied sand thereto but was unable to stop before colliding with appellee's car. He further testified that there was no traffic to the left nor to the right of appellee. This, of course, would distort appellant's theory that other traffic was the sole cause of the accident.

If appellant rests upon appellee's theory of the case, to-wit: that he passed appellant's street car several blocks back from the scene of the accident and that he had driven up to the intersection where the accident occurred and stopped his car, that he was there quite some time waiting for traffic on his left to clear in order that he might make a left-hand turn and that after waiting some time appellant's street car, without warning, struck him, it would thereby destroy any reasons for submitting to the jury the issue of sole proximate cause.

Appellant does not cite any testimony supporting the theory of other traffic being the sole proximate cause of the accident. After considering the evidence most favorable to appellant's theory, the most issue we find that such traffic could raise would be unavoidable accident, which was properly submitted to the jury, there being nothing to indicate an unusual or extraordinary amount of traffic over and above that which both the appellee and appellant were not accustomed to. Dallas Railway & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777. We find the presence of such traffic was merely a condition and circumstance in the usual and customary course of travel and that the facts in the instant case are not the same as those in...