Dallas Ry. & Terminal Co. v. Bailey

• Decision Date: 06 December 1951
• Docket Number: No. 2989,2989
• Citation: 245 S.W.2d 275
• Parties: DALLAS RY. & TERMINAL CO. v. BAILEY.
• Court: Texas Court of Appeals

Page 275

245 S.W.2d 275

DALLAS RY. & TERMINAL CO. v. BAILEY.

No. 2989.

Court of Civil Appeals of Texas, Waco.

Dec. 6, 1951.

Rehearing Denied Jan. 26, 1952.

Burford, Ryburn, Hincks & Ford and Robert E. Burns, all of Dallas, for appellant.

Mullinax, Wells & Ball, Dallas, for appellee.

HALE, Justice.

This is a suit for damages on account of personal injuries resulting from an automobile collision which occurred in the outskirts of the City of Dallas on January 18, 1949. Appellee was riding in an automobile belonging to and being operated by her son in an easterly direction along Fort Worth Avenue when it struck the rear end of appellant's bus while the latter was stopped on the south side of the street taking on passengers. At the place of the collision the paved portion of Fort Worth Avenue consisted of four traffic lanes, with a sloping graveled shoulder extending from each edge of the pavement to the boundary lines of the street. The paved roadway and graveled shoulders were covered with ice and snow to a depth of about four inches and by reason thereof the street was slippery and hazardous for automotive traffic.

The case was tried before a jury. Upon the conclusion of the evidence appellant moved the court for a peremptory instruction upon the ground that appellee was guilty of contributory negligence as a matter of law. The motion was overruled and 32 special issues were submitted to the jury. In response thereto the jury found in substance, among other things, that the operator of appellant's bus was negligent in stopping the bus on the paved portion of the roadway and such negligence was a proximate cause of the collision; that appellee did not fail to keep a proper lookout for the bus, she was not negligent in failing to warn her son of the presence of the bus, or in failing to request him to slow down the speed of his car, and she was not negligent in riding with her son under the existing circumstances; that the act of appellee's son in running into and against the rear of the bus was not a new and independent cause of the collision; and that the collision was not the result of an unavoidable accident.

In due time appellant filed and presented its motion for judgment non obstante veredicto. The motion was overruled and judgment was rendered in favor of appellee for her found damages in the sum of $5000.00. Appellant's motion for new trial was also overruled and the cause is now properly pending in this court for review on certain points of error which are germane to the grounds contained in the motion.

Points one to eleven in the brief of appellant relate to the general issue of contributory negligence. Appellant thereby contends that under the evidence appellee was conclusively shown to be guilty of contributory negligence as a matter of law. In the alternative, it further contends in effect that if there was any evidence which in law tendered any issue of fact for the jury with respect to the contributory negligence of appellee, then in that event the evidence as a whole was insufficient to support the findings of the jury relating thereto. Therefore, it insists that the trial court should have granted its motions for peremptory instruction and judgment non obstante, or, in the alternative, should have granted its motion for new trial on account of the insufficiency of the evidence to support the verdict of the jury.

In passing upon the foregoing contentions it is the duty of this court to view the evidence as a whole and all reasonable inference and deductions that may properly be drawn therefrom in the light most favorable to the verdict and judgment. Unless reasonable minds could not differ in concluding from the undisputed evidence that some pleaded act or omission on the part of appellee constituted negligence and that such negligence on her part proximately caused or contributed to cause her injuries, we could not say the court below erred in overruling appellant's motion for a peremptory instruction or its motion for judgment non obstante, even though it might appear to us that the court should have granted appellant's motion for new trial on account of the insufficiency of the evidence to sustain the findings of the jury on the issues submitted.

The evidence was indefinite and somewhat conflicting as to the exact time of the day, the degree of natural light present, and the precise place on Fort Worth Avenue, when and where the collision occurred. Appellee alleged that it occurred about 6:50 A. M. and the jury found it occurred more than thirty minutes prior to sunrise. Appellee's son testified that the bus was in the south traffic lane completely on the paved portion of the roadway while appellant's bus operator testified that only the left...