Dallas Transit Co. v. Hammer

Decision Date30 April 1965
Docket NumberNo. 16489,16489
Citation390 S.W.2d 823
PartiesDALLAS TRANSIT COMPANY, Appellant, v. W. J. HAMMER, Jr., Appellee.
CourtTexas Court of Appeals

Turner, Atwood, Meer & Francis, and Dean Carlton, Dallas, for appellant.

Helm, Jones & Pletcher, and George E. Pletcher, Houston, for appellee.

BATEMAN, Justice.

The appellee W. J. Hammer, Jr., recovered a judgment of $25,000 against the appellant Dallas Transit Compahy for bodily injuries sustained in a collision on April 30, 1962 between appellant's bus and an automobile operated by appellee.

The undisputed facts were that appellant's bus was going South, and appellee was going North, on the Houston Street Viaduct in Dallas. There is a fairly sharp turn in this viaduct near the north end. The two vehicles began negotiating this turn at about the same time, the bus turning to its right and the automobile to its left. It was raining heavily. This viaduct has two traffic lanes on each side of the center line. Appellee's car was in the inside northbound lane. As the bus approached the turn it moved from its outside lane partly into its inside lane, the driver thinking it necessary to do so to make the turn. As the two vehicles neared each other, the bus skidded into the left side of appellee's car. No evidence was offered to explain why the bus skidded except that it was said that the wet street was slippery. The bus driver lost control of the bus as soon as it started skidding.

The jury found in answer to special issues that: (1) the appellant's bus traveling on the wrong side of the road was negligence, (2) which was a proximate cause of the collision; (3) appellant's bus driver failed to maintain such control of the bus as would have been maintained by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, (4) which failure was a proximate cause of the collision; (5) the collision was not the result of an unavoidable accident; (6) at the time and just before the collision the bus did not skid suddenly and unexpectedly; and (8) the appellee's damages were $25,000.

Appellant presents thirty-three points of error on appeal, which are divided into five groups and will be so considered and disposed of by us.

The first group consists of Points 1 through 6. It is asserted therein that Special Issues Nos. 1, 2, 3 and 4 are global in nature and in reality constitute a general charge. The first and fourth points of error assert that for that reason there was error in the submission of these four issues; the third and sixth points assert error in the awarding of judgment on such findings; and the second and fifth points say that the court erred in overruling appellant's motion for judgment non obstante veredicto.

The second and fifth points of error are overruled. The facts that these issues may be objectionable as to form, and the findings in response thereto insufficient to support a judgment for the plaintiff, do not entitle the defendant to a judgment.

The first, third, fourth and sixth points, however, are sustained. Special Issues Nos. 1 and 3 are gobal in nature and so vague, general and indefinite as to constitute a general charge. Appellant was thus deprived of that submission of the case on special issues guaranteed to it by Rule 277, Vernon's Texas Rules of Civil Procedure.

Just a few days before this case was tried, the Fort Worth Court of Civil Appeals decided the case of Pitts v. Barclay, 377 S.W.2d 750, in which it was held that a special issue submitting the question of whether the driver of a motor vehicle failed to keep the same under 'proper control' (defined as 'such control that a person of ordinary prudence would have kept under the same or similar circumstances') amounts to a general charge and a global submission of negligence, subject to objection on those grounds, and that 'a favorable finding thereto returned (and to the appended issue on proximate cause) cannot alone, in and of itself, support a plaintiff's judgment in a case where the defendant has objected to the issue on that ground.' Our Supreme Court affirmed on February 17, 1965 in Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644, wherein it was said: 'In our opinion an inquiry concerning proper control simply has no place in the charge when appropriate objection is made by the party against whom it would otherwise be given.' See also Kainer v. Walker, Tex.Sup.1964, 377 S.W.2d 613.

Appellee reminds us that the last sentence of Rule 277, T.R.C.P. authorizes the submission of a case on a general charge if good cause is shown therefor, and argues that the circumstances of this case present such 'good cause' as entitled him to the submission of the case on a general charge. We do not agree with appellee. Although he had alleged six specific acts of negligence on the part of appellant, he apparently made no effort to prove any of them; all he proved was that appellant's bus, being driven around a curve in the rain, skidded out of control and collided with his automobile, which was in its proper lane. His inability to prove negligence on the part of appellant does not give him the right to ask the jury to speculate that the happening of the accident must necessarily presuppose negligence as the cause thereof. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199.

It was held in Dallas Transit Co. v. Tolbert, Tex.Civ.App., 337 S.W.2d 617, 620, wr. ref. n. r. e., that an operator who has lost control of his vehicle is not responsible for what happens thereafter unless his loss of control was caused by negligence in the management of the vehicle. Appellee recognizes this as the correct rule but attempts to distinguish the Tolbert case from this case by showing, inter alia, that in the Tolbert case there was ample evidence that the driver was not negligent in failing to regain control, while in this case, 'there is no evidence excusing the admitted loss of control by Defendant, or his presence in the wrong lane, both of which caused the accident.' Likewise, there is no evidence convicting appellant's driver of negligence in permitting the bus to go out of control. Appellant was under no duty to excuse 'the admitted loss of control'; the burden was on appellee to prove that the loss of control was proximately caused by appellant's negligence.

Special Issue No. 1 was as follows:

'Do you find from a preponderance of the evidence that at the time and on the occasion in question the Dallas Transit Company's bus traveling on the wrong side of the road was negligence as that term has been defined for you?'

The jury answered 'We do.' In the light of the aforesaid holding in the Tolbert case, and the undisputed evidence that the bus crossed the center line of the pavement after it had gone out of control, it is our holding that the special issue inquiring as to whether traveling on the wrong side of the road was negligence was just as objectionably global in nature as the proper control issue. It permitted the jury to speculate as to the cause of the bus being on the wrong of the road and to find the defendant guilty of negligence generally, the same as would be authorized if the case had been submitted on a general charge.

Appellant's first, third, fourth and sixth points of error are sustained.

Points of error 7 through 12 comprise the second group submitted by appellant and are based upon the...

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5 cases
  • Evans v. Pollock, 3-86-068-CV
    • United States
    • Court of Appeals of Texas
    • March 15, 1989
    ...if the testimony is otherwise admissible and relevant, will not ordinarily constitute a basis for reversal. Dallas Transit Co. v. Hammer, 390 S.W.2d 823, 828 (Tex.Civ.App.1965), rev'd on other grounds, 400 S.W.2d 885 (Tex.1966); see 1 McCormick & Ray, Texas Law of Evidence Civil and Crimina......
  • Haney Elec. Co. v. Hurst, 20725
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 17, 1981
    ...Tex.Cr.R. 63, 225 S.W.2d 568, 570 (1949); Jones v. State, 76 Tex.Cr.R. 398, 174 S.W. 1071, 1075 (1915); Dallas Transit Co. v. Hammer, 390 S.W.2d 823, 828 (Tex.Civ.App.-Dallas 1965) rev'd on other grounds, 400 S.W.2d 885 (Tex.1966); Oliver v. Williams, 381 S.W.2d 703, 709 (Tex.Civ.App.-Corpu......
  • Hammer v. Dallas Transit Co.
    • United States
    • Supreme Court of Texas
    • March 16, 1966
    ...shows that defendant's bus was out of control; and the defendant was under no burden to prove that its bus was excusably out of control. 390 S.W.2d 823. We reverse the judgment of the Court of Civil Hammer was driving in a northerly direction toward downtown Dallas on the Houston Street Via......
  • Aetna Casualty & Surety Company v. Brown, 17166
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 29, 1971
    ...50--55, Witnesses, Sec . 169, in which non responsive answers are discussed. Also cited is the case of Dallas Transit Company v. Hammer, 390 S.W.2d 823 (Dallas, Tex.Civ.App., 1965); Hammer v. Dallas Transit Company, 400 S.W.2d 885 (Tex.Sup., 1966); and Dallas Transit Company v. Hammer, 404 ......
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