Dallas Ry. & Terminal Co. v. Gossett

• Decision Date: 10 October 1956
• Docket Number: No. A-5639,A-5639
• Citation: 294 S.W.2d 377,156 Tex. 252
• Parties: DALLAS RAILWAY & TERMINAL COMPANY, Petitioner, v. Vernon A. GOSSETT et al., Respondents.
• Court: Texas Supreme Court

Page 377

294 S.W.2d 377

156 Tex. 252

DALLAS RAILWAY & TERMINAL COMPANY, Petitioner, v. Vernon A. GOSSETT et al., Respondents.

No. A-5639.

Supreme Court of Texas.

Oct. 10, 1956.

Rehearing Denied Nov. 7, 1956.

Burford, Ryburn, Hincks & Ford, Howard Jensen and H. Sam Davis, Jr., Dallas, for petitioner.

John C. Walvoord, Jr., James R. Ellis, W. H. Cathey, Dallas, for respondents.

WALKER, Justice.

Vernon A. Gossett and wife, plaintiffs, brought suit against Dallas Railway & Terminal Company, defendant, to recover damages for personal injuries sustained by Mrs. Gossett when defendnat's bus, on which she was riding as a passenger, struck an automobile driven by Mrs. Mary Sample. The defendant impleaded Mrs. Sample as a third party defendant and prayed for judgment against her for indemnity or contribution, but no relief was sought against her by the plaintiffs.

The trial court entered judgment on the verdict that plaintiffs recover from the defendant their damages as found by the jury, and that defendant take nothing from Mrs. Sample, and this judgment has been affirmed by the Court of Civil Appeals. 284 S.W.2d 749. It is our opinion that the judgment for the plaintiffs should be reversed and the cause remanded for a new trial of their action against the defendant, and that the judgment in favor of Mrs. Sample should be affirmed.

Defendant's first group of points assert that it was deprived, by the conditional submission of certain issues, of jury findings on whether Mrs. Sample's proceeding the wrong way on a one-way street was negligence and a proximate cause or sole proximate cause of the collision. The accident occurred at the intersection of Ross Avenue and Olive Street in the City of Dallas. Defendant's bus, which was proceeding east on Ross, stopped at the south curb just west of the intersection to receive and discharge passengers, and Mrs. Gossett entered the bus at that point. Mrs. Sample, who was also driving east on Ross, passed to the left of the bus and turned her automobile to the right to go south on Olive just as the bus began moving from the passenger stop, and the front of the bus struck the right rear portion of the automobile. Mrs. Gossett was standing near the front of the bus at the time and was thrown forward and injured as a result of the sudden stop.

The jury acquitted Mrs. Gossett of any negligence, and found that her injuries were proximately caused by several negligent omissions on the part of defendant's driver. Defendant alleged that Mrs. Sample was negligent in failing to keep a proper lookout, in turning her automobile to the right from the wrong lane, in failing to make her approach and turn as close as practical to the right hand edge of the roadway, and in turning her automobile to the right when such movement could not be made with safety. By their answers to the issues submitting these contentions, the jury found that Mrs. Sample was not guilty of any of such acts or omissions.

Defendant also alleged that Olive Street was duly and legally designated as a one-way street on which traffic might proceed north only, that signs at the intersection revealed that traffic was not permitted to move south thereon, that Mrs. Sample was negligent in proceeding south on a street designated as one-way for north-bound traffic only, and that such negligence was the sole proximate cause, or in the alternative a proximate cause, of Mrs. Gossett's injuries. These are the contentions which defendant says were not properly submitted by the charge to the jury.

Special Issue No. 22 required the jury to determine whether Olive Street had been designated as a one-way street for northbound traffic only. The next three issues, which inquired whether Mrs. Sample's proceeding south on said street was negligence and a proximate cause, or the sole proximate cause, of Mrs. Gossett's injuries, were conditioned upon an affirmative answer to Issue No. 22. Having answered the last mentioned issue in the negative, the jury had no occasion to and did not answer the three succeeding issues. Defendant insists that the undisputed evidence establishes as a matter of law that Olive Street had been designated as a one-way street for northbound traffic only, and that the trial court erred in submitting Special Issue No. 22 and in conditioning the three succeeding issues upon an affirmative answer thereto.

No ordinance of the City of Dallas regulating the movement of traffic on Olive Street was introduced in evidence. An accident investigator for the Dallas Police Department testified that there were signs on the street showing it to be one-way for northbound traffic. Both Mrs. Gossett and defendant's driver stated that it was a one-way street north, and Mrs. Sample replied in the affirmative to a question inquiring whether it had been recently made a one-way street at the time.

The witnesses evidently believed that traffic was authorized to move only in a northerly direction on Olive Street, but their testimony cannot be given the effect for which the defendant contends. Evidence showing that one-way signs were posted on the street does not constitute proof that the same were displayed in compliance with law. The legal designation by a municipal corporation of one of its streets as a one-way street is established by proof of the adoption of an ordinance to that effect. It cannot be said that motorists are required by law to proceed in only one direction thereon unless the provisions of the ordinance are considered and their legal effect determined. The existence and contents of the ordinance are facts to be established by proof, and its legal effect is a question of law for the court.

It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97. See also Webb v. Reynolds, Tex.Com.App., 207 S.W. 914; Texas & N. O. R. Co. v. Wood, Tex.Civ.App., 166 S.W.2d 141 (no writ); Perren v. Baker Hotel of Dallas, Tex.Civ.App., 228 S.W.2d 311 (no writ). The question of whether the provisions and legal effect of a municipal ordinance may be established by an unsupported conclusion of a witness was considered in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1060, where it was contended that the testimony of an officer of the city that he had authority to arrest without warrant was evidence of the existence of an ordinance conferring such authority. In disposing of this contention, the Court said:

'* * * his testimony * * * is merely the opinion of the officer as to his authority, and does not purport to state even the substance of an ordinance. It does not even appear to have been based upon an ordinance. * * * The existence and contents of the ordinance were facts to be established by proof. The proof did not bear upon those issues, but, assuming them to be established, Shely merely gave his opinion as to the authority conferred upon him thereby. This was only his opinion upon a question of law. Such an opinion could not establish the fact-the ordinance-upon which it was based. * * *'

None of the witnesses in the present case undertook to state the substance of an ordinance, and it does not appear that their testimony was based on an ordinance. Only one was asked whether Olive had been designated as a one-way street by the traffic authorities of the City of Dallas, and he replied, 'I know the signs were there.' Their statements that Olive was a one-way street are simply the conclusions of the witnesses on a mixed question of law and fact, and do not even constitute evidence of probative force that it had been duly and legally designated as such.

Defendant also argues that in view of Mrs. Sample's statement that Olive had just been made a one-way street, it was not necessary to offer proof of the city ordinance. The circumstances which are considered in determining whether the testimony of a party shall be given the force and effect of a judicial admission are discussed in United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224 (er. ref.). Before the testimonial declaration of a party will be given conclusive effect, it must appear among other things that the statement is deliberate, clear and unequivocal. Mrs. Sample did not state in clear and positive terms that Olive had been legally designated as a one-way street, and it is not necessary for us to determine whether there are other reasons for holding that her testimony does not constitute a waiver of proof of that fact.

Defendant further contends that the evidence at least establishes as a matter of law that one-way signs were posted at the intersection. Mrs. Sample testified that she looked even after the wreck and did not see any such signs, and this raises an issue of fact as to whether Olive Street was signposted for one-way traffic. It is Our opinion that the submission of Special Issue No. 22, and the conditioning of the succeeding three issues upon an affirmative answer thereto, were not objectionable for any of the reasons urged by the defendant in this appeal.

Turning now to the defendant's remaining points, the evidence discloses that the plaintiffs had incurred expenses aggregating approximately $390 for ambulance service, X-rays, office visits to and treatment by several doctors and medicines and that it will be necessary for Mrs. Gossett to obtain further treatment in the future. Defendant contends that the trial court erred in permitting the jury to consider past and future expenses as elements of damage, because there is no evidence that the expenses incurred prior to the...