Edison v. Perry-Foley Funeral Home

• Decision Date: 05 October 1939
• Docket Number: No. 10852.,10852.
• Parties: EDSON et al. v. PERRY-FOLEY FUNERAL HOME.
• Court: Texas Court of Appeals

132 S.W.2d 282

EDSON et al. v. PERRY-FOLEY FUNERAL HOME.

No. 10852.

Court of Civil Appeals of Texas. Galveston.

October 5, 1939.

Rehearing Denied October 26, 1939.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Dwight J. Edson, in his own behalf and as next friend of his four minor children, against the Perry-Foley Funeral Home to recover for death of Mrs. Ruth Edson, for injuries to his son, David Edson, and for damages to an automobile, joined with an action by Dwight J. Edson, as next friend of his son, David Edson, for injuries against the Perry-Foley Funeral Home. From the judgments, plaintiffs appeal.

Affirmed in part and in part reversed and remanded.

Fulbright, Crooker & Freeman, of Houston (John H. Crooker and Leon Jaworski, both of Houston, of counsel), for appellants.

Sam Neathery, Wood & Morrow, and Newton Gresham, all of Houston, for appellee.

MONTEITH, Chief Justice.

This is an appeal in an action brought by Dwight J. Edson in his own behalf and as next friend of his four minor children, against Perry-Foley Funeral Home, a corporation, to recover damages alleged to have been sustained as a result of the negligent operation of an ambulance driven by an employee of appellee, which resulted in the death of his wife, Mrs. Ruth Edson, the mother of his four children, and injuries to his son, David Edson, and for damages to his automobile. In the same suit was joined an action by Dwight J. Edson, as next friend of his three-year old son, David Edson, for injuries sustained by David Edson as a result of such collision.

The suit arose out of a collision which occurred in the City of Houston on the afternoon of October 20, 1937, between an automobile being driven by Mrs. Edson, in which David Edson was also riding, and an ambulance owned by the appellee being driven by Carl Smith, one of its employees. At the time of the collision the ambulance was being driven south on Almeda Road. Mrs. Edson was proceeding in a westerly direction on Southmore Boulevard, which intersects Almeda Road at right angles. The collision occurred at the intersection of these two streets. Mrs. Edson died as a result of the injuries received in the collision. The minor, David Edson, sustained permanent personal injuries, and the Edson automobile was damaged.

Appellants alleged that Mrs. Edson was proceeding across Almeda Road having a green light signal in her favor when appellee's ambulance, proceeding at a fast rate of speed, passed through a red light and ran into her car. They alleged numerous specific acts and omissions on the part of appellee and its driver, claimed to amount to negligence proximately causing the accident.

Appellee alleged that its ambulance was being operated at a rate of speed which was permitted by an ordinance of the City of Houston to ambulances answering emergency calls; that it was on an emergency call at the time of the collision, and that although the ambulance passed through a red light, Mrs. Edson, had she been properly attentive to the conditions existing at and near the intersection in question, could have avoided the accident, but that she had failed to do so. Appellee alleged various acts and omissions on the part of Mrs. Edson which it alleged amounted to contributory negligence.

The case was tried before a jury, who, in answer to special issues submitted, found, among other facts, that appellee's driver on the occasion in question entered the intersection of Almeda Road and Southmore Boulevard against a red light; that said driver failed to give a reasonable and proper warning of the approach of the ambulance to the intersection, and that each of said negligent acts proximately caused said collision; that as Mrs. Edson approached or started across Almeda Road she failed to keep a proper lookout for vehicles on Almeda Road approaching the intersection of Southmore Boulevard and Almeda Road from her right, and that such failure was a proximate cause of the collision in question; that on the occasion in question Mrs. Edson attempted to cross Almeda Road without first seeing whether such crossing could reasonably be made in safety, but that her attempting to cross Almeda Road under such circumstances did not constitute negligence, and that Mrs. Edson did not attempt to cross Almeda Road without first ascertaining whether or not there was any danger in attempting to cross at that time. They assessed damages in favor of each of appellants in various sums.

Based on the findings of contributory negligence on the part of Mrs. Edson, the trial court overruled a motion made by appellants to disregard the jury's findings and to enter judgment in their favor, and entered judgment in favor of appellee in all particulars, save that, since Mrs. Edson's contributory negligence was not imputable to the injured minor, David Edson, judgment was entered in his favor for injuries sustained by him.

It is the contention of appellants that, since Mrs. Edson, at the time of the collision, was proceeding with a green light traffic signal in her favor, she was warranted in entering said intersection without keeping a lookout to her right for vehicles approaching said intersection, and that her failure to do so cannot, as a matter of law, constitute negligence.

We have been referred to no Texas cases with a similar state of facts which sustain appellants' contentions or which pass on the exact question here presented. We have, however, been referred to numerous authorities from other jurisdictions which uniformly hold that the modern traffic signal system does not relieve the driver of a vehicle of the duty of maintaining an adequate lookout on entering an intersection to determine whether the conditions at or near the intersection are such as may affect his safety.

In the case of Byrne v. Schultz, 306 Pa. 427, 160 A. 125, 127, which involved an intersection collision with a state of facts similar to those in the instant case, with the exception of the fact that the crossing in question was guarded by signals given by a traffic officer, instead of signal lights, as in the instant case, it is held that due care is required at intersections under all circumstances whether or not a traffic officer or signal is present, and that a driver "must be vigilant, must exercise a high degree of care, must have his car under complete control, and must look, and see what is visible, before attempting to cross the intersecting street." The court further held that this duty has not been relaxed by the introduction of traffic officers and signals, both of which are intended to facilitate traffic and render crossings less dangerous, and that a driver is still bound with the same degree of care as before the introduction of these modern aids to travel.

In the case of Plunkett v....