Dallas Ry. & Terminal Co. v. Darden

• Decision Date: 16 May 1931
• Docket Number: No. 1264-5664.,1264-5664.
• Parties: DALLAS RY. & TERMINAL CO. v. DARDEN.
• Court: Texas Supreme Court

38 S.W.2d 777

DALLAS RY. & TERMINAL CO. v. DARDEN.

No. 1264-5664.

Commission of Appeals of Texas, Section B.

May 16, 1931.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by George A. Darden against the Dallas Railway & Terminal Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [23 S.W.(2d) 739], and defendant brings error.

Affirmed.

Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, for plaintiff in error.

Smithdeal, Shook, Spence & Bowyer and Caldwell, Gillen, Francis & Gallagher, all of Dallas, for defendant in error.

LEDDY, J.

Defendant in error, who was sixty-six years of age, conducted a small suburban store in the city of Dallas, situated on Bowen street, over which street plaintiff in error operated a double track line of street railway. The track nearest defendant in error's place of business was located about ten feet from the curb, approximately six feet of which space was paved and the remainder nearest to the curb being rough and unpaved. On the occasion in question defendant in error's automobile was parked near the curb in front of his place of business. He received an order for some drugs to be delivered, got in his car, and drove in an angling direction toward the street car line, in order to avoid driving over the rough portion of the street next to the curb. Upon reaching the car line, one of plaintiff in error's street cars approaching from the rear collided with his automobile, inflicting upon him serious and permanent injuries.

He recovered a judgment against plaintiff in error, based upon favorable findings of a jury, which determined that he was free from contributory negligence, and his injuries were not the result of an avoidable accident, but were proximately caused by the negligence of plaintiff in error's motorman in operating said street car in the following respects: (a) The discovery of defendant in error's peril in time to have avoided the accident by the use of the means at his command; (b) failure to lessen the speed of the car after acquiring knowledge of defendant in error's position upon the track; (c) failure to give proper warning by sounding the gong; (d) operating the car at an excessive rate of speed; (e) failure to exercise proper care to keep a lookout for persons upon the track; (f) failure to keep the car under proper control.

The first proposition presented by plaintiff in error in its application for writ of error is as follows: "The issue of accident being raised, as found by the Court of Civil Appeals, and being in fact raised by the pleadings and the evidence, the Court of Civil Appeals erroneously held that the error of the trial court in placing the burden of proof upon the defendant was harmless."

If the issue of unavoidable accident was raised by the evidence, the error of the trial court in placing the burden of proof on such issue upon plaintiff in error was not a harmless one. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W.(2d) 521.

In its original opinion, 23 S.W.(2d) 739, 743, the Court of Civil Appeals did not find whether the issue of unavoidable accident was raised by the evidence, but on rehearing it expressly found that such issue was not raised. Its conclusion upon this point on rehearing is thus stated: "The language of the original opinion disposing of appellant's assignments attacking the court's charge on the issue of unavoidable accident leaves room for an inference that this charge was held to be harmless solely on the ground of the findings of the jury on other issues. We thought then and think now that the manner in which the court submitted the issue of accident, while erroneous, was harmless, because that issue was not raised by the evidence. The testimony as to how the collision occurred was very definite, and clearly showed that the resulting injury was due either to the negligence of the motorman in charge of the street car, or to the plaintiff in driving his automobile on the track in front of the street car. There was no support in the evidence for the conclusion that the collision occurred without fault of either party. The submission of that issue was objected to by the appellee upon the grounds here stated, and that objection should have been sustained. We therefore conclude that the judgment should not be reversed for the erroneous submission of an issue not raised by the evidence."

The granting of the application for a writ of error in this case was no doubt induced by the statement in the application that the Court of Civil Appeals found the issue of unavoidable accident was raised by the evidence. The above quotation from the opinion of that court shows, however, that it found directly to the contrary.

A careful review of the facts contained in the record convinces us that the finding of the Court of Civil Appeals that such issue was not in the case is correct; hence its conclusion that the error in the charge on this issue was harmless is a sound one.

An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise. If the accident complained of could have been prevented by either party, by the use of means suggested by common prudence, it was not unavoidable. Galveston, H. & S. A. Ry. Co. v. Gormley (Tex. Civ. App.) 35 S. W. 488; Hodgson v. Dexter, 12 Fed. Cas. 283, No. 6565; Smith v. Southern Ry. Co., 129 N. C. 374, 40 S. E. 86; Wilson v. Roach, 101 Okl. 30, 222 P. 1000; Dygert v. Bradley, 8 Wend. (N. Y.) 469.

It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.

No such theory is presented by the evidence in this case. If the defendant in error, as contended by plaintiff in error, drove his automobile in an angling direction from the curb and on to its railway track, it was the duty of the motorman, in the exercise of proper caution, to keep a lookout to discover his approach and give warning by sounding the gong. If this was done, and defendant in error drove his car on the track at such a distance from the street car that it could not have been stopped by the motorman, when the street car was in plain view and the warning signal being sounded, then clearly the accident was the result of his own negligence. On the other hand, if he drove the automobile on the railway track when the street car was such a distance away as to render him free from any negligence, then the operator of the...