Davis v. Estes, 1303-5798.

• Decision Date: 06 January 1932
• Docket Number: No. 1303-5798.,1303-5798.
• Citation: 44 S.W.2d 952
• Parties: DAVIS v. ESTES.
• Court: Texas Supreme Court

44 S.W.2d 952

DAVIS v. ESTES.

No. 1303-5798.

Commission of Appeals of Texas, Section B.

January 6, 1932.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Elmer Davis against B. M. Estes. From the judgment of the Court of Civil Appeals [28 S.W.(2d) 565] reversing and remanding the judgment in favor of plaintiff in the trial court, plaintiff brings error.

Affirmed.

Ernest Belcher, of Stephenville, and George Clark, of Waco, for plaintiff in error.

Chandler, Keith & Chandler, of Stephenville, Ocie Speer, of Austin, and Estes & Estes, of Granbury, for defendant in error.

LEDDY, J.

Plaintiff in error was awarded damages for personal injuries sustained by reason of a collision of the automobile which he was driving with an automobile driven by defendant in error.

One of the defensive pleas urged by defendant in error was that the injuries sustained by plaintiff in error were the proximate result of his violation of the provisions of article 794 of the penal statutes of this state in driving his car at a rate of speed in excess of 15 miles per hour while he was attempting to pass defendant in error's car upon a public highway.

The court submitted the issue covered by this plea in the following form:

"Special Issue No. 26. Did the plaintiff Elmer Davis attempt to pass the defendant B. M. Estes at the time and place on said highway or street at a rate of speed greater than 15 miles per hour?

"Special Issue No. 27. If you have answered Special Issue No. 26 in the affirmative, then answer the following special issue; otherwise you need not answer: Was the act of plaintiff Elmer Davis in attempting to pass the defendant B. M. Estes at the time and place on said highway or street at a rate of speed greater than 15 miles per hour, if he did do so, negligence as that term has been defined to you?

"Special Issue No. 28. If you have answered Special Issue No. 27 in the affirmative, then answer the following special issue; otherwise you need not answer: Was such negligence on the part of Elmer Davis, if any, the proximate cause, or a proximate contributing cause to his injuries, if any, sustained in the collision?"

Defendant in error timely presented the following objections to the above issues:

"The defendant objects to special issue No. 27 because the same is on the weight of the evidence and advises the jury of the effect of their answer to issue No. 26."

"The defendant objects to special issue No. 28 because the same is on the weight of the evidence and advises the jurors of the effect of their answers to special issue No. 27, and assumes facts which are controverted issues in this case, and because an affirmative answer to issue No. 26 would make the defendant guilty of negligence per se in law."

He also seasonably requested the court to give the following special issues:

"Special Issue No. 4. As plaintiff approached and attempted to pass the defendant and his motor vehicle at the time and place of the collision between plaintiff's and defendant's cars, was he traveling or going at a rate of speed in excess of 15 miles per hour?

"(g) If in answer to Special Issue Number 4 your answer is `Yes', then was the speed at which plaintiff attempted to pass defendant's car the proximate cause of his injuries and damage, if any?"

The trial court refused these requested special issues, and error thereon has been properly assigned.

The jury answered special issue No. 26 in the affirmative, No. 27 in the negative, and, acting under instructions by the court, made no answer to issue No. 28.

The Court of Civil Appeals reversed and remanded the cause, holding that the trial court's charge was erroneous in submitting to the jury the issue as to whether the violation by the plaintiff in error of article 794 constituted negligence, and further holding that defendant in error's special issues Nos. 4 and g should have been given.

Plaintiff in error contended in the Court of Civil Appeals, and now contends, that defendant in error's objection to the court's charge was insufficient upon which to predicate its assignment of error complaining of the correctness of the charge. We conclude, however, that the objections to special issues numbers 27 and 28, when considered in connection with the special issues requested by defendant in error, were sufficient to call the attention of the trial court to the fact that defendant in error was insisting that a violation of article 794 upon the part of plaintiff in error was negligence per se, and that defendant in error was entitled to have the jury determine whether such negligence caused or contributed to bring about his injury.

The jury found that plaintiff in error, when attempting to pass the car driven by defendant in error, was traveling at a rate of speed in excess of 15 miles per hour. This finding rendered him guilty of negligence per se; hence it was clearly erroneous for the trial court to permit the jury to determine whether such act was negligence. Railway Co. v. Wilson, 60 Tex. 142; T. & P. Ry. Co. v. Baker (Tex. Com. App.) 215 S. W. 556; Hess v. Denman Lbr. Co. (Tex. Civ. App.) 218 S. W. 162.

In our opinion, the jury should have been permitted by the court's instruction to determine whether plaintiff in error's negligence in operating his car in excess of the speed permitted by law caused or contributed to bring about his injuries.

Plaintiff in error insists that the failure to submit the special issues requested by defendant in error was proper for the following...