East Texas Motor Freight Lines v. Loftis

• Decision Date: 05 October 1949
• Docket Number: No. A-2227.,A-2227.
• Citation: 223 S.W.2d 613
• Parties: EAST TEXAS MOTOR FREIGHT LINES v. LOFTIS.
• Court: Texas Supreme Court

Page 613

223 S.W.2d 613

EAST TEXAS MOTOR FREIGHT LINES v. LOFTIS.

No. A-2227.

Supreme Court of Texas.

October 5, 1949.

Rehearing Denied November 2, 1949.

Strasburger, Price, Holland, Kelton & Miller, Dallas, Royal H. Brin, Jr., Dallas, for petitioner.

James S. Grisham, Dallas, Miller & Jackson, Tyler, Steve Miller, Tyler, J. A. Lantz, Dallas, for respondent.

HART, Justice.

The respondent and his wife were injured in a collision between the automobile in which they were riding as guests and a truck owned by the petitioner. The truck was parked at the curb on West Erwin Street in Tyler when the automobile ran into it from the rear. The respondent alleged that the truck was parked in violation of two ordinances of the City of Tyler and that these violations proximately caused the collision. The petitioner pleaded, among other defenses, that the sole cause of the collision was the failure of the driver of the automobile to keep a proper lookout. Based upon jury findings, the court entered judgment for the respondent, overruling the petitioner's motion for judgment non obstante veredicto. This judgment was affirmed by the Court of Civil Appeals. 219 S.W.2d 133.

The petitioner attacks the validity of the first ordinance relied on by the respondent, the pertinent portions of which read as follows:

"Traffic Ordinance

"An ordinance regulating traffic upon the public streets of Tyler, Texas, and repealing all other ordinances and sections of ordinances in conflict therewith.

"Article 6 — Stopping, Standing or Parking

"Section 24. Buses, taxicabs, hackneys, transfer trucks and other public service vehicles prohibited from parking in certain sections.

"It shall hereafter be unlawful for the operators of any bus, taxicab, hackney, transfer truck, or other public service vehicle to park on any public street, alley, or place in the City of Tyler; however, this provision shall not prevent any such vehicle from temporarily stopping in accordance with other parking regulations, for the purpose of and while actually engaged in, taking on or discharging passengers or loading or unloading materials."

Petitioner urges that this ordinance is unauthorized, unreasonable, and discriminatory. We cannot agree with this contention. The City of Tyler is a home rule city, and under Sections 16, 20, and 21 of Article 1175, Vernon's Texas Civil Statutes, it is given broad powers to regulate the use of the public streets by all vehicles, including particularly vehicles used for the carrying of passengers and freight for hire. It is not unreasonable for the city to adopt ordinances applicable only to vehicles operated for hire and regulating or prohibiting their use of the public streets for specified purposes. This ordinance prohibits the use of the public streets for storage or parking of vehicles operated for hire, except when the vehicles are being loaded or unloaded, and its effect and its apparent purpose are to make more parking space available for the general public. Petitioner has no right to demand that it be permitted to use the public streets for parking vehicles used in its business as a carrier for hire. In West v. City of Waco, 116 Tex. 472, 294 S.W. 832, this court upheld an ordinance which prohibited the parking of vehicles operated for hire upon any public square in the City of Waco. Ordinances prohibiting or limiting the use of the streets by such vehicles have been upheld, with this court's approval, upon the ground that municipal corporations have broad discretion in regulating the use of the public streets for the prosecution of private business. See Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6, 7, writ refused; City of San Antonio v. Fetzer, Tev.Civ.App., 241 S.W. 1034, writ refused; Waid v. City of Fort Worth, Tex.Civ.App., 258 S.W. 1114, writ refused; Harper v. City of Wichita Falls, Tex.Civ.App., 105 S. W.2d 743, writ refused. Two cases cited by petitioner, City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829, and City of Fort Worth v. Lillard, 116 Tex. 509, 294 S.W. 831, involved ordinances which were held invalid because their effect was extraterritorial in that they interfered with the general policy of the State permitting the use of the state highways for transporting freight and passengers for hire. This cannot be said of the ordinance here attacked. Other cases cited by petitioner, Ex parte Battis, 40 Tex.Cr.R. 112, 48 S.W. 513, 43 L.R.A. 863, 76 Am.St.Rep. 708 (compare Ex parte Harrison, 135 Tex.Cr.R. 611, 122 S.W.2d 314); Baker v. Hasler, 218 Mo.App. 1, 274 S.W. 1095, and City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935, were decided by other courts, and to the extent that they are inconsistent with the views we have expressed, we decline to follow them.

Petitioner also urges that the violations of the ordinance cannot be held to be negligence per se, because the ordinance did not have the purpose of preventing accidents such as that involved in the present case. Whether the violation of an ordinance or a statute can be held to be negligence as a matter of law depends at least in part on whether a purpose of the ordinance was to afford protection against the hazard involved in the particular case. Missouri, K. & T. Ry. Co. of Texas v. Saunders, 101 Tex. 255, 106 S.W. 321, 14 L.R.A.,N.S., 998, 16 Ann.Cas. 1107; Texas & P. Ry. Co. v. Baker, Tex.Com.App., 215 S.W. 556; Alpine Telephone Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830; Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; Restatement, Torts, § 286. We do not think that it can reasonably be said that one of the purposes of the ordinance in this case was to prevent a collision such as occurred here. It is true that the ordinance is designated a traffic ordinance, because it regulates the use of the streets by vehicles, but such ordinances do not necessarily have to be designed to prevent accidents. For example, an ordinance prohibiting parking within fifteen feet of a fire hydrant "was intended to assure immediate availability in case of a fire in the vicinity and not to aid in regulating traffic as an aid to highway safety." See Ennis v. Atkin, 354 Pa. 165, 169, 47 A.2d 217, 219. In a similar case, the court said, "The ordinance was not for the protection of the traveling public. Its purpose was to keep the hydrant accessible for quick use in case of need." See Denson v. McDonald Bros., 144 Minn. 252, 253, 175 N.W. 108. Here the purpose of the ordinance plainly is to limit the use of the streets by vehicles operated for hire and consequently to provide more parking space for other vehicles. If the purpose of the ordinance were to prevent collisions, then there would be no reason for limiting the ordinance to vehicles operated for hire or for making an exception where the vehicles are loading or unloading. The parking of a truck used only in the owner's private business would be as dangerous as the parking of a truck operated for hire; and a parked private passenger car would offer the same obstruction to traffic as a parked taxi. Certainly there would be no less danger to the public when a truck was loading or unloading than when it was stopped for some other purpose. It is the "other parking regulations" referred to in the present ordinance which were evidently designed to require parking to be done in such manner and at such places as...