Dudley & Orr v. Jacobs

• Decision Date: 06 December 1923
• Docket Number: (No. 1524.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 257 S.W. 315
• Parties: DUDLEY & ORR v. JACOBS.
• Court: Texas Court of Appeals

Page 315

257 S.W. 315

DUDLEY & ORR v. JACOBS.

(No. 1524.)^*

Court of Civil Appeals of Texas. El Paso.

December 6, 1923.

Rehearing Denied January 10, 1924.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Mrs. P. M. Jacobs, as next friend, against Dudley & Orr, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Winter, McBroom & Scott, of El Paso, for appellant.

Moore & Smith, of El Paso, for appellee.

WALTHALL, J.

This was a suit brought in the Forty-First district court by Mrs. P. M. Jacobs, as next friend for her minor son, Walter Jacobs, a boy about 12 years of age, seeking recovery of damages against Dudley & Orr, a corporation, for personal injury alleged to have been caused said minor by his bicycle, upon which he was riding on a street in El Paso, coming in contact with small particles of crushed rock alleged to have been negligently left in the street by defendant, and that such bicycle, by striking the same, was caused to skid, and thereby caused said minor to receive a fall from his bicycle; to which action defendant pleaded general denial and contributory negligence on the part of such minor. Trial was had to a jury on a general charge, the court having refused a peremptory instruction asked by defendant, and verdict was returned in favor of plaintiff against defendant.

By several propositions appellant urges that it was error to refuse requested peremptory instruction for defendants: (1) Because there is no evidence that the defendants or their servants left the crushed rock in the street which caused the bicycle to skid; and (2) because it does not sufficiently appear that any crushed rock in the street caused the bicycle upon which Walter Jacobs was riding to skid and fall.

Plaintiff pleaded that, while Walter Jacobs was riding his bicycle on the street of El Paso, the bicycle struck certain small stones, which were particles of crushed rock, and the bicycle was thereby caused to skid and fall, and threw him to the street and broke his leg. The negligent act assigned is that appellants permitted crushed rock to fall out of their trucks and be left on the street. If there is any evidence to support appellee's charge of negligence and proximate cause, it is found in the testimony of Walter Jacobs, Mrs. Jacobs, and Mrs. Webb, which substantially is as follows, copied from appellee's brief:

"Walter Jacobs testified: `I fell off my bicycle that afternoon at the corner of Indiana and Tremont streets. I skidded. A rock caused me to skid. Just before my bicycle skidded, I did not notice anything lying on the surface of the pavement. I never saw anything on the street until I got to skidding. I saw a rock. It looked like this rock, sharp rock, broken up (indicating some pieces of crushed rock, ranging in size from half an inch to an inch shown the witness). The kind of rock my bicycle ran into was not the kind of rock you ordinarily see around in that section of Highland Park. When I fell, both wheels of the bicycle skidded. By "skidded" I mean just slipped, and threw me down. After I saw the rocks, I did not have time to stop. I saw the rocks just as I started to skidding. It was just a second or so before I fell. These are the particular rocks I saw there when I began to skid; a boy picked them up in the street for me, and brought them to the house; I don't know when, but a short time after I was hurt. It was about three or four weeks. I did not pick up these rocks myself. They are not the same identical rocks I skidded on, but ones that look just like them.'"

"Mrs. John L. Webb, after testifying that she was sitting on her front porch, about an hour or two before Walter Jacobs was hurt, and that from there she could plainly see the corner of Indiana and Tremont streets, about a block away, said: `I saw a truck, loaded with stone or crushed rock, turn the corner of Indiana and Tremont streets. * * * This particular time I saw the rock fall off was about two, not more than two hours and a...