Dallas Ry. & Terminal Co. v. Young

• Decision Date: 26 September 1941
• Docket Number: No. 2168.,2168.
• Citation: Dallas Ry. & Terminal Co. v. Young, 155 S.W.2d 414 (Tex. App. 1941)
• Parties: DALLAS RY. & TERMINAL CO. v. YOUNG.
• Court: Texas Court of Appeals

155 S.W.2d 414

DALLAS RY. & TERMINAL CO. v.YOUNG.

No. 2168.

Court of Civil Appeals of Texas. Eastland.

September 26, 1941.

Rehearing Denied October 24, 1941.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by Mrs. Mamie D. Young against the Dallas Railway & Terminal Company for personal injuries sustained by plaintiff while a passenger on defendant's street car.From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Burford, Ryburn, Hincks & Charlton, of Dallas, for appellant.

Carden, Starling, Carden & Hemphill, of Dallas, for appellee.

LESLIE, Chief Justice.

Mrs. Mamie D. Young instituted this suit against the Dallas Railway & Terminal Company to recover damages for personal injuries sustained by her while a passenger on the defendant's street car.

Defendant entered a general demurrer, general denial and plea of contributory negligence, etc.Trial was before the court and jury and the case was submitted on special issues and upon the answers returned the court entered judgment for plaintiff.At the conclusion of the testimony defendant requested a peremptory instruction in its favor and later made motion for judgment notwithstanding the verdict.These motions were overruled and the defendant appeals.

In substance it is the contention of the appellant that the judgment should be reversed and rendered in its favor by this court for the reasons: (1) That appellant's operator at the time of the accident was presented with an emergency which precludes the appellee, Mrs. Young, from recovering for any injuries sustained by reason of the motorman's act in suddenly stopping the street car, since he was suddenly and unexpectedly confronted with an emergency not caused, created, or in any wise contributed to by his negligence and by reason of which (emergency)he was called upon to act immediately and without deliberation in his effort to avert a probable and potential calamity, and that the course pursued by him in so acting was calculated to best protect both his passengers and those upon the street.(2) That the emergence of traffic (pedestrian and vehicular) out into the intersection of the street when the signal light changed from green to amber in and of itself was a new and independent cause and the sole proximate cause of the appellee's injuries under the principle (a)"that one who does nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, is not made liable for the injury, if there intervenes between such prior acts creating the condition and injury a distinct and unrelated but efficient cause of the injury; and (b) an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, is not actionable since such an act is not the proximate cause, but at most either the remote cause or no cause whatever of the injury."

Under these contentions and upon the theory that the uncontradicted evidence established the existence of an emergency, appellant predicates error in the court's judgment under its first four propositions.The fifth proposition is that if such testimony of the emergency is not undisputed, then an issue of fact was raised which was not submitted by the court, but refused by it when tendered by the appellant, accompanied by proper definition of "emergency."

The verdict of the jury convicted the defendant upon two grounds of negligence: (1) That the motorman negligently stopped the car suddenly with a jerk, and that such negligence was a proximate cause of her injuries, and (2) that the motorman's failure to continue to drive "cautiously" through the intersection of said street under the circumstances was negligence proximately causing said injuries.The plaintiff was found to be free from contributory negligence.

The accident occurred about 5:30 in the afternoon in the down town business section of Dallas.The plaintiff, carrying a sandwich plate and her purse under her arm, boarded a westbound Highland Park street car at Main and Murphy.She got on at a front entrance door and started walking back into the car (her back to the front of the street car) to find a seat, intending to sit in the first cross seat.The motorman in the meantime started the car forward to cross Murphy Street.The vestibule where the motorman sits to operate the car is lower by 8 or 10 inches than the main part of the car and while the plaintiff was in the act of walking from the vestibule to the seat and before she turned around the street car suddenly stopped causing her to lose her balance and fall backward to the floor of the car into the vestibule.She alleges and testifies that in boarding and passing into the car she did not observe or know the color of the traffic light fronting the street car, but that the motorman was and had been for a long time in a position to see and observe the traffic light, whatever its color at the time he started and stopped the car.

After picking up the passengers at that point, the motorman started the car to cross Murphy Street.At such starting the traffic light was green and the car had moved but two or three feet when the light changed to amber.It is the contention of the appellant that immediately upon such last change of the light both pedestrian and vehicular traffic on Murphy Street proceeded to cross Main Street in front of the street car and that the motorman, in order to avoid a collision with the same, threw on his brakes and brought the street car to a stop.That under such circumstances the operator was necessarily confronted with a sudden emergency which required him to act instantly and without deliberation in an effort to avoid striking a pedestrian or colliding with passing vehicles; that stopping the street car as quickly as he could to avert such catastrophe was not negligence, but was the fulfillment of the care required of him by law; that under such circumstances there is no evidence that such conduct was negligence and a proximate cause of the plaintiff's injuries.That the change of the light and the movement and condition of the traffic in front of the street car were of themselves the proximate cause of the plaintiff's injuries; and such causes, as in law contributed to or furnished a new and independent cause, and the sole proximate cause of the injuries.

It will be observed that each of the appellant's five propositions are fundamentally based upon the alleged fact of emergency (at the time of the accident) thereby invoking what is here advanced as the "emergency rule" exonerating defendant from any liability under the testimony which, as pointed out, appellant asserts to be uncontradicted in the establishment of such emergency.That is the only assault made upon the verdict and judgment and the contentions will presently be examined in the light of the testimony and these contentions.

In the first place, we think the emergency rule which the appellant seeks to employ in the trial of this cause is recognized by the authorities of this State.The Supreme Court of Wisconsin in Hanson v. Matas, 212 Wis. 275, 249 N.W. 505, 506, 93 A.L.R. 546, says: "The emergency rule exculpates one when he acts upon his judgment in an emergency of imminent peril not created by his own fault."The rule is stated in 13 C.J.S., Carriers, under the heading of Sudden Jerks and Jolts, at p. 1410, § 750, as follows: "A carrier is not liable for jerks or jolts which are necessarily incident to the use of the conveyance, but the rule is otherwise where the jerk or jolt is unnecessary, or sudden and violent."Under Annotations in L.R.A. 1915D, at p. 369, it is said: "A carrier is not liable for injuries to a passenger resulting from the sudden stopping of a train in an emergency not due to the carrier's negligence."The emergency rule has more often been applied in Texas to exculpate the plaintiff from the charge of contributory negligence, but there would seem to be no doubt that it operates under certain conditions as effectively to relieve the defendant from the charge of primary negligence.Dr. Pepper Bottling Co. v. Rainboldt, Tex.Civ.App., 66 S.W.2d 496, 501;Schroeder v. Rainboldt, 128 Tex. 269, 97 S.W.2d 679, 684;Anding v. Queener, Tex.Civ.App., 138 S.W.2d 126;International & G. N. Ry. Co. v. Neff, 87 Tex. 303, 28 S.W. 283;Missouri, K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S.W. 956;International & G. N. Ry. Co. v. Bryant, Tex.Civ.App., 54 S.W. 364;Texas Midland Ry. Co. v. Booth, 35 Tex.Civ.App. 322, 80 S.W. 121;Yellow Pine Paper Mill Co. v. Wright, Tex.Civ.App., 154 S.W. 1168;Alamo Iron Works v. Prado, Tex. Civ.App., 220 S.W. 282;Graham v. Hines, Tex.Civ.App., 240 S.W. 1015;Browning v. Beck, Tex.Civ.App., 73 S.W. 2d 626, 628.

For authorities in other jurisdictions seeCleveland City Ry. Co. v. Osborn, 66 Ohio St. 45, 63 N.E. 604;Cleveland Ry. Co. v. Orwig, 124 Ohio St. 134, 177 N.E. 201;Canton Motor Coach Inc. v. Hall, 460 Ohio App. 516, 189 N.E. 505;Mintz v. International Ry. Co., 227 N.Y. 197, 124 N.E. 893;Kantrowitz v. Metropolitan Street Ry. Co., 63 App.Div. 65, 71 N.Y. S. 394;Tochek v. Monongahela Transport Co., 109 W.Va. 20, 152 S.E. 776;Corkhill v. Camden & S. Ry. Co., 69 N. J.L. 97, 54 A. 522;Stewart v. Central Vermont Ry. Co., 86 Vt. 398, 85 A. 745, 44 L.R.A., N.S., 433;Robinson v. Connecticut Co., 122 Conn. 300, 189 A. 453;Cook v. Philadelphia Rapid Transit, 120 Pa. 565, 182 A. 755.

As said in 5 Tex.Jur.p. 680, sec. 89, "The issue as to responsibility is in such circumstances [of emergency] to be resolved by reference to the act or omission which brought the dangerous situation into existence."

We now come to an application of the "emergency rule" to the facts before us.After a careful consideration of the testimony we are of the opinion that uncontradicted evidence did not require the trial court to grant the appellant's motion for an instructed verdict or to enter for...