Darden v. Denison

• Decision Date: 06 October 1927
• Docket Number: (No. 566.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Darden v. Denison, 3 S.W.2d 137 (Tex. App. 1927)
• Parties: DARDEN v. DENISON.
• Court: Texas Court of Appeals

3 S.W.2d 137

DARDEN v. DENISON.

(No. 566.)^*

Court of Civil Appeals of Texas. Waco.

October 6, 1927.

Rehearing Denied December 1, 1927.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by J. R. Denison against W. E. Darden. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

F. M. Fitzpatrick, of Waco, for appellant.

F. R. Valentine and W. L. Eason, both of Waco, for appellee.

BARCUS, J.

Appellee instituted this suit against appellant, seeking to recover damages for personal injuries which he sustained by reason of his motorcycle, which he was riding, having collided with an automobile truck owned by appellant. It appears that appellant owned a lumber yard, and that one of his trucks, which was used for the delivery of lumber, was returning to the yard, and as the driver thereof turned to the left, to cross the street and go into the lumber yard, appellee, riding his motorcycle, ran into said truck and was injured, and his motorcycle damaged. Appellee alleged that the driver of the truck, without blowing the horn, or holding out his hand, or giving any other kind of signal, turned suddenly to the left on the street directly in front of appellee, and that his acts in so doing were negligence, which caused the injuries.

As a defense appellant alleged that appellee was guilty of contributory negligence, in that he was riding at a high, reckless, and dangerous rate of speed, and, further, that appellee was guilty of contributory negligence, in that he did not keep a proper lookout for other traffic on the street and did not have his motorcycle under proper control. The cause was submitted to a jury on special issues, and resulted in judgment being entered for appellee for $2,500 damages.

The only issue of negligence on the part of appellant submitted by the court was special issue No. 1, as follows:

"Was the defendant, acting through its agent, servant, and employee, at the time and place in question, guilty of negligence, as that term has been herein defined, in respect to the incident under consideration and on the occasion in question?"

To which the jury answered, "Yes." Appellant assigns error to the action of the trial court in overruling his exceptions and objections to said issue, because it did not confine the jury to the act or acts of negligence alleged in the petition, and because it did not separate the act or acts of negligence alleged by plaintiff against the defendant, and because it permitted the jury to find the defendant guilty of acts of negligence which were not contained in the petition. We sustain this assignment. Almost the identical question here presented was decided in Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Civ. App.) 280 S. W. 882 (error dismissed), where the court, in disposing of the question, stated:

"We have no doubt that the trial court was in error in overruling appellant's objection to the form of special issue No. 2, and in submitting that issue as he did. It is to be seen at a glance that the jury, by reason of the manner and form of issue No. 2, were in no respects limited or confined in their consideration of the question to any one or more of the acts of negligence specifically relied upon by plaintiff for recovery. * * * The trial court should not have turned the jury loose, as he did, without bounds or limitation, to answer that the manner in which appellant's truck was driven at the time in question amounted to negligence."

In Tyrrell Hardware Co. v. Orgeon (Tex. Civ. App.) 289 S. W. 1040 (writ refused), wherein plaintiff was seeking to recover damages which he had suffered by his motorcycle being struck by an automobile, the court used this language:

"It is well settled by the authorities in this state that a plaintiff in a case of this character can only recover damages upon some one or more of the acts of negligence alleged in his petition, and when the case is submitted upon special issues, only the specific acts of negligence alleged in plaintiff's petition and supported by evidence should be submitted for the jury's consideration."

To the same effect is...