Dallas Ry. & Terminal Co. v. Boland

• Decision Date: 15 September 1932
• Docket Number: No. 1229.,1229.
• Citation: Dallas Ry. & Terminal Co. v. Boland, 53 S.W.2d 158 (Tex. App. 1932)
• Parties: DALLAS RY. & TERMINAL CO. et al. v. BOLAND et ux.
• Court: Texas Court of Appeals

53 S.W.2d 158

DALLAS RY. & TERMINAL CO. et al. v. BOLAND et ux.

No. 1229.

Court of Civil Appeals of Texas. Waco.

September 15, 1932.

Rehearing Denied October 13, 1932.

Appeal from District Court, Dallas County; Towne Young, Judge.

Action by George A. Boland and wife against the Dallas Railway & Terminal Company and another. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Worsham, Rollins, Burford, Ryburn & Hincks and Leachman & Gardere, all of Dallas, for appellants.

W. J. Rutledge, Jr., of Dallas, for appellees.

BARCUS, J.

Appellees instituted this suit against appellants, Dallas Railway & Terminal Company and R. E. McVey, to recover $25,000 damages which they claimed they had suffered by reason of appellants having negligently killed their nine year old son.

The Dallas Railway & Terminal Company, hereinafter called the bus company, was operating a passenger bus in Dallas, and at the time in question, about 7:30 a. m., a bus loaded with passengers was coming from the residential section into town down Ewing avenue. The bus was about 8 feet wide and 14 feet long and carried 21 passengers. Ewing avenue was a paved street about 30 or 36 feet in width. Appellant McVey was driving his car down Ewing avenue behind the bus, and, in attempting to pass it, struck a bicycle on which the two boys of appellees were riding, and as a result thereof one of the boys was killed. The bus company had no connection or control over the car driven by McVey; neither did he have any connection or control over the bus.

The jury, in answer to special issues, found that the bus driver was not guilty of negligence in failing to keep a proper lookout. It found that the operator of the bus was guilty of negligence, which was a proximate cause of the injury, in failing to operate the bus in such manner as that he gave due regard for the safety of other persons, and that the bus driver was guilty of negligence, which was a proximate cause of the injury, because he failed to keep the bus as close as possible to the right-hand side of the street, as required by subdivision J, article 801 of the Penal Code. The jury found that McVey was operating his car at a negligent rate of speed, which was a proximate cause of the injury; that he negligently failed to sound his horn before attempting to pass the bus, which was a proximate cause of the injury; that he was negligent in failing to keep a proper lookout, which was a proximate cause of the injury; that he was negligent in operating his automobile without allowing sufficient room for other persons to use the west side of Ewing avenue, which was a proximate cause of the injury. It found that the collision between the automobile of McVey and the bicycle was not the result of an unavoidable accident. The jury further found that the children on the bicycle were not guilty of any acts of negligence. They assessed appellees' damages at $5,000.

Appellees in their brief state that the judgment of the trial court cannot be upheld by virtue of the finding of the jury that the bus driver was guilty of negligence in failing to keep the bus as close as possible to the right-hand side of the street, as required by subdivision J of article 801 of the Penal Code, since this section has been held invalid by the Supreme Court, speaking through the Commission of Appeals, in Abbott v. Andrews, 45 S.W. (2d) 568. Further discussion of said finding is therefore omitted.

The only other act of negligence found by the jury against the bus company is contained in special issues 3, 4, and 5, in answer to which the jury found, in effect, that the operator of the bus was guilty of negligence, which caused the injury, "in failing to operate the bus in such a manner as that he gave due regard for the safety of other persons using Ewing Avenue at said time." Appellant bus company excepted to the allegation in appellees' pleading raising said issue, on the ground that same was a mere conclusion of the pleader, was too vague and indefinite, and amounted to a general allegation of negligence, which exception was overruled by the trial court. Appellant bus company objected to said issue being submitted because it was vague and indefinite, and because no guide was given to the jury as to what was meant by the term "due regard," and because it was in effect a general charge, and further, that since appellees had pleaded specific acts of negligence with reference to the method and way the bus was being operated, they were limited thereto. We think it was error for the trial court to overrule the exception to said pleading and to submit said issues to the jury. The law seems to be well settled that, where a party pleads specific acts of negligence, same control and supersede any general allegations relative thereto. San Antonio & A. P. Ry. Co. v. DeHam, 93 Tex. 74, 53 S. W. 375; San Antonio Gas & Electric Co. v. Speegle (Tex. Civ. App.) 60 S. W. 884; Gordon v. Postal Telegraph-Cable Co. (Mo. App.) 24 S.W.(2d) 644. Said issue as submitted in effect turned the jury loose...