Dallas Ry. & Terminal Co. v. Bailey

• Decision Date: 18 June 1952
• Docket Number: No. A-3553,A-3553
• Citation: 250 S.W.2d 379,151 Tex. 359
• Parties: DALLAS RAILWAY & TERMINAL CO. v. BAILEY.
• Court: Texas Supreme Court

Page 379

250 S.W.2d 379

151 Tex. 359

DALLAS RAILWAY & TERMINAL CO. v. BAILEY.

No. A-3553.

Supreme Court of Texas.

June 18, 1952.

On Rehearing July 23, 1952.

Burford, Ryburn, Hincks & Ford, Logan Ford and Robert E. Burns, Dallas, for petitioner.

Mullinax, Wells & Ball, Dallas, for respondent.

CALVERT, Justice.

Mrs. Sarah Jane Bailey, a widow, was injured when an automobile in which she was riding as a guest collided with the rear end of a bus owned by Dallas Railway & Terminal Company. In the trial court Mrs. Bailey recovered a judgment of damages against the Railway & Terminal Company, but the judgment was reversed and the cause remanded for retrial by the Court of Civil Appeals. 245 S.W. 2d 275. Both parties applied for writ of error, the application of the Railway & Terminal Company being based upon its point that certain conduct of Mrs. Bailey was contributory negligence as a matter of law which was a proximate cause of her injuries and that the Court of Civil Appeals therefore erred in not rendering judgment for the Railway & Terminal Company. The application was granted and because of the granting of such application Mrs. Bailey's application asserting that the Court of Civil Appeals erred in reversing and remanding the cause because of the admission of certain evidence, to be noticed later, was also granted. The parties will be referred to in this opinion as plaintiff and defendant.

A fairly detailed statement of the factual background of the suit is contained in the opinion of the Court of Civil Appeals and only a brief statement of the facts necessary to a proper understanding and determination of the questions presented will be made here.

In the early morning of January 18, 1949, the defendant's bus was stopped and receiving passengers on the south side of Ft. Worth Avenue, a four-lane highway, at its intersection with Jacqueline Place in the Western outskirts of the City of Dallas. The bus was headed in an easterly direction and it is admitted by the defendant that the bus was at least partially on the paved portion of the highway. While the bus was so stopped the automobile in which plaintiff was riding, owned and operated by her son, ran into the rear end thereof.

The evidence reflects that during the preceding night the automobile in which plaintiff was riding had been exposed to snow, sleet and freezing rain and that on the morning of the collision the windshield was coated over with ice, sleet and snow. The evidence further reflects that the automobile was equipped with a heater, windshield wipers and defrosters. The testimony of the plaintiff is that before attempting to use the automobile on the morning of the accident the motor was allowed to run for ten or fifteen minutes until the ice on the windshield had melted and that they did not start their trip until the windshield was clear; that her son stopped the automobile after driving approximately two blocks and cleaned off his side of the windshield before proceeding to the place of the collision, just a few blocks further. with respect to the condition of the windshield after they had stopped the plaintiff testified as follows:

'Q. When you started up then was the windshield clear? A. Yes.

'Q. In front of Buster? A. In front of Buster it was perfect.

'Q. How was it on your side? A. On my side, it was still melting. You see he didn't clean it off of my side.

'Q. Could you see out? A. Yes, but not as clearly as he could.'

Based principally upon the testimony of the plaintiff that her visibility was limited to fifteen or twenty feet and the testimony of her son that when he first saw the bus it was only eighteen to twenty feet away at which time he was driving at a rate of speed of fifteen to twenty miles per hour, the son admitting that allowing for ordinary reaction time his brakes could not have been applied effectively within the eighteen or twenty feet, defendant asserts that the record shows contributory negligence as a matter of law.

It has been held in some jurisdictions to be negligence as a matter of law to drive an automobile at such a rate of speed as that it cannot be stopped by the driver within his range of vision. On the other hand the courts of some jurisdictions have rejected this theory. For cases in support of both views, see 28 Tex. Law Rev. 120 and annotations in 44 A.L.R. 1403, 58 A.L.R. 1493, 87 A.L.R. 900 and 97 A.L.R. 546. But which ever may be the sounder view, a matter which we find it unnecessary to decide, the rule can have no application to the facts in this case. If the son were the plaintiff here there might be occasion to invoke that rule. But he is not the plaintiff and his negligence cannot be imputed to his mother. Galveston, H. & S.A.R. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127, 130; Jacobe v. Goings, Tex.Civ.App., 3 S.W.2d 535, 538, writ dism. The fact that the driver of the automobile may have been guilty of negligence as a matter of law in driving at such a rate of speed as that he could not stop within the range of his vision does not convict the plaintiff of the same negligence. Whether the plaintiff was guilty of negligence must be determined by viewing the situation through her eyes.

The testimony of the plaintiff presents evidence that she had no knowledge that the driver's range of vision was limited to eighteen or twenty feet. Her testimony is fairly subject to the interpretation that while her own range of vision was limited to fifteen or twenty feet, she thought the range of vision of the driver was much greater. In the light of this testimony it cannot be said that the fact that the plaintiff continued to ride with her son at a rate of speed of fifteen or twenty miles per hour without protest or warning to him was contributory negligence as a matter of law.

The jury in answer to a series of issues absolved the plaintiff of negligence based on her failure to request her son to slow down the speed of the car, her failure to warn her son of the presence of the bus and her failure to caution her son to look out for traffic on the highway and particularly for defendant's bus. Under the evidence these were fact issues and they are foreclosed against the defendant by the jury's findings.

We are not unmindful of the rules of conduct prescribed for a guest by the cases of Texas Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Kypfer v. Texas & P. Ry. Co., Tex.Civ.App., 88 S.W.2d 528; Wichita Valley Ry. Co. v. Fite et ux., Tex.Civ.App., 78 S.W.2d 714, no writ history, cited by defendant. Those cases may be distinguished from the instant case, however, in that in each of those cases the driver of the automobile was proceeding toward a railroad crossing with which the guest was familiar, a place known to the guest to be a place of danger, at such a rate of speed as that it was also known to the guest that under the existing conditions of poor visibility the automobile could not be stopped in time to avoid a collision if the crossing was blocked by a train. In the instant case we have neither the element of the known place of danger nor the element of knowledge on the part of the guest that the range of vision of the driver was as limited as was the range of vision of the plaintiff. The cited cases are not controlling.

As has been indicated, the trial court's judgment in favor of plaintiff was reversed by the Court of Civil Appeals because of the error of the trial court in admitting, over the defendant's objection, testimony of plaintiff's witness Hardy, for ten and one-half years a bus operator, to the effect that it was not 'safe' to stop a bus on the highway before daylight and when the highway was covered with ice, and that it was not 'safe' to stop a bus or any vehicle in the traffic lane of a highway at night and under icy conditions.

We agree with the view of the Court of Civil Appeals that the matter inquired about did not lie within the field properly subject to expert opinion testimony and that the testimony of the witness was a pure conclusion that should have been excluded. Ample support for that holding is found in the cases cited by the Court of Civil Appeals. Moreover, the testimony was not made admissible by the fact that defendant's witness, Doss, the driver of the bus involved in the collision, had theretofore testified, without objection by plaintiff, that he drove the bus as far to the right as he 'thought practical and safely (sic) to the public and his passengers and everybody else concerned.' The fact that inadmissible testimony of one party is admitted without objection does not authorize the other party, by way of rebuttal, to but in inadmissible testimony over timely and proper objection. Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321; Shiner v. Abbie, 77 Tex. 1, 13 S.W. 613; Massey v. Allen, Tex.Civ.App., 222 S.W. 682, 684, no writ history; Smith v. Burroughs, Tex.Civ.App., 34 S.W.2d 364, writ dism.; Phelps v. State, Tex.Civ.App., 157 S.W.2d 955, no writ history. Nor did the cross-examination of the witness as to the testimony improperly admitted over defendant's objection, waive the right of the defendant to complain of the error. Cathey v. Missouri, K. & T. Ry. Co. of Texas, 104 Tex. 39, 41, 133 S.W. 417, 33 L.R.A.,N.S., 103; Hidalgo County Water Control & Improvement Dist. No. 1 v. Goodwin, Tex.Com.App., 25 S.W.2d 813; Stinnett v. Paramount-Famous Laskey Corp. of New York, Tex.Com.App., 37 S.W.2d 145.

But the plaintiff says that even if the trial court erred in admitting the testimony the error was harmless within the meaning of Rules 434 and 503, Texas Rules of Civil Procedure, which direct that the Courts of Civil Appeals and this Court shall not reverse judgments for errors of law committed on the trial unless they 'shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * *.' We ...