Dallas Ry. & Terminal Co. v. Little

• Decision Date: 26 June 1937
• Docket Number: No. 12239.,12239.
• Parties: DALLAS RY. & TERMINAL CO. v. LITTLE et al.
• Court: Texas Court of Appeals

109 S.W.2d 289

DALLAS RY. & TERMINAL CO. v. LITTLE et al.

No. 12239.

Court of Civil Appeals of Texas. Dallas.

June 26, 1937.

Rehearing Denied September 25, 1937.

COPYRIGHT MATERIAL OMITTED

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

Action by Marble Little, administratrix, and others against the Dallas Railway & Terminal Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Worsham, Burford, Ryburn & Hincks and Allen Charlton, all of Dallas, for appellant.

William H. Neary and Beverly B. Neal, both of Dallas, for appellees.

LOONEY, Justice.

Appellant, Dallas Railway & Terminal Company, appealed from an adverse judgment for damages for the death of Jewell Little, alleged to have resulted from appellant's negligence; the judgment being in favor of Marble Little, administratrix, and G. O. Little and wife, parents of the deceased. The amount recovered by the administratrix was for the pain and suffering endured by deceased from the time of being injured to her death, and the amount recovered by the parents was the pecuniary assistance of which they were deprived by reason of the death of their daughter.

Jewell Little died about 4 days after receiving injuries when a motorcycle on which she and three others were riding ran into the rear end of an unlighted street car belonging to appellant. The accident happened under substantially the following circumstances: About 1:30 a. m. January 27, 1935, C. W. Denton, motorman, was operating the street car traveling south on Haskell avenue, a public street of the city of Dallas, had passed over the track of the H. & T. C. Railway that crosses said street at right angles on an elevation of about 4 feet above the street level that slopes gradually each way, and had proceeded south on a single track to a point 142 feet from the railway crossing, where the street car line branches into a double track, and in passing from the single track on to the west line of the double track the trolley at the rear end of the car became disconnected, cutting off both power and light. At the time of this occurrence, the car was making 3 or 4 miles per hour, and could immediately have been stopped, the trolley connection re-established, and both power and light restored, but, instead of stopping and re-establishing the connection, the motorman permitted the darkened car to coast to a point 282 feet south of the railway track, where it was brought to a standstill, thereupon the motorman immediately turned and was walking through the car towards the rear for the purpose of reattaching the trolley to the wires above, and, when about halfway the length of the car, the motorcycle on which Jewell Little and three others were riding, ran into the rear or north end of the street car, with the result hereafter mentioned. The motorcycle had a boxlike side attachment or car, in which Mrs. Godwin, Jewell Little, and C. A. Stevens were riding, and was operated by John Godwin, proceeding south on Haskell, when it ran into the rear of the parked street car which was standing on the west track, killing Godwin, his wife, and Jewell Little (who died about 4 days after the accident), and seriously injuring Stevens.

The material issues raised by the pleadings and supported by evidence are sufficiently indicated by the findings of the jury, as follows: That appellant was guilty of actionable negligence in failing to sooner relight the street car after the lights were extinguished; in failing to give any warning of the presence of the unlighted street car by sounding the gong; and in failing to keep a lookout for the motorcycle just prior to the time of the collision. They also found that the collision was not the result of an unavoidable accident; that it was not solely and proximately caused by any act or omission of John Godwin the driver of the motorcycle; and that deceased was not guilty of negligence causing or contributing to cause the collision. The jury found damages in favor of the mother and father in the sum of $4,000, and in favor of the administratrix in the sum of $2,000, for which judgment was rendered in favor of the parties, respectively, from which this appeal was prosecuted. These findings of the jury, in our opinion, are supported by evidence, and are adopted as our findings on the respective issues.

Appellant's main contention is that, as the evidence raised the issue of a new and independent cause, the court, in defining proximate cause, should have included the effect of a new and independent cause in the chain of causation, and should have defined the term "new and independent cause." In support of this contention, appellant insists that the circumstances show that the motorman could not reasonably have anticipated that Godwin, the operator of the motorcycle, would continue straight ahead and run into the rear end of the street car.

We cannot adopt appellant's view of this matter. We think the only thing reasonably foreseeable or likely to happen was that, a motorist on the street, especially one traveling south on the west side, would probably collide with the unlighted and unheralded car. The testimony of Denton, the motorman, indicates clearly that the thought of such a probability was in his mind. Being asked why, after the lights were cut off and the car left in darkness, he permitted it to coast 200 feet before stopping, answered that he wanted to get well in the clear of the dump (the H. & T. C. Railway track) because he did not want anything to come over the dump and hit him, which he felt might happen if the car was stopped close to the dump, saying that he took that precaution "to keep anything from running into me." If the jury had found deceased guilty of contributory negligence, plaintiffs could not have recovered — not because the contributory negligence of deceased destroyed the causal connection between the negligent act or omission of appellant's motorman, but because the failure of deceased to use ordinary care for her own safety contributed to the injury; or, if the jury had found that any negligent act or omission of Godwin, operator of the motorcycle, was the sole proximate cause of the collision, plaintiffs could not have recovered — not because the negligence of Godwin was a new and independent cause, but because it alone caused the injury.

Considering a very similar situation presented in Magnolia Petroleum Co. v. Owen, 101 S.W.(2d) 354, 358, Chief Justice Jones of this court used the following pertinent language: "The acts or omissions of a person charged with negligence, which caused the injury, clearly are not those of an independent agency, nor are the acts or omissions of the persons injured a `new and independent agency'; for the one is the agency procuring the injury, and the other is the agency receiving the injury. The acts or omissions of neither are new and independent causes, as both have a direct bearing upon the right of the injured party to recover. * * * To the acts or omissions of neither party to a personal injury suit, can be ascribed the operation of a new and independent agency. It must be ascribed to some outside agency, operating to cause the injury. Karotkin Furniture Co. v. Decker (Tex. Com.App.) 50 S.W.(2d) 795; Offer v. Swancoat (Tex.Civ.App.) 27 S.W.(2d) 899; Hughes Co. v. Clark Bros. Co. (Tex. Civ.App.) 63 S.W.(2d) 230; Dixie Motor Coach Corp. v. Galvan, 86 S.W.(2d) 633; Phoenix Ref. Co. v. Tips, 125 Tex. 69, 81 S.W.(2d) 60; Houston Belt & T. R. Co. v. Davis (Tex.Civ.App.) 19 S.W.(2d) 77."

We have carefully examined the authorities cited by appellant in support of its contention, but fail to find that either is in point; however, we do find in each the presence of the element of a new and independent cause. In Orange, etc., R. Co. v. Harris, 127 Tex. 13, 89 S.W.(2d) 973, 974, the independent element was the presence of an arc light maintained by the city of Orange, that blinded plaintiff and obscured a flat car on the crossing with which he collided; in Greer v. Thaman (Tex.Com. App.) 55 S.W.(2d) 519, it was an unsafe and crumbling shoulder of the highway; in Southland Greyhound Lines v. Cotten, 126 Tex. 596, 91 S.W.(2d) 326, it was the presence of a third car parked on the highway; in Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.(2d) 60, it was the blinding light of a passing vehicle; in Dixie Motor Coach Corporation v. Galvan, 126 Tex. 109, 86 S.W.(2d) 633, it was the action of a bus in crowding the vehicle causing death off the highway. Other cases to the same effect are: Swift & Co. v. Eanes (Tex.Civ.App.) 92 S.W.(2d) 522, the new element being a truck negligently parked on the highway, causing plaintiff to swerve to the left and in so doing to collide with an oncoming truck, and in Gillette Motor Transport v. Fine (Tex.Civ App.) 103 S.W.(2d) 196, the new and independent element, in substance, was the same as in Swift & Co. v. Eanes, supra.

Appellant argues that, as the facts presented the issue of "unavoidable accident," necessarily, the issue of "new and independent cause" was also present, requiring the court to suitably charge the jury with reference thereto. Although the court submitted the issue of unavoidable accident (which was found against the contention of appellant), we do not think the facts presented that issue, or required the court to charge the jury with reference thereto. However, we think it obvious that these issues — that is, "unavoidable accident" and "new and independent cause" — are separate and distinct. In a given case the facts presenting one may also require the submission of the other, yet this is not necessarily true in every instance. In Orange, etc., R. Co. v. Harris, 127 Tex. 13, 89 S.W.(2d) 973, 974, the Supreme Court, quoting from Dallas Ry., etc., Co. v. Darden (Tex.Com.App.) 38 S.W.(2d) 777, 779, said: "An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or...