Ellis v. Lewis

• Decision Date: 20 June 1940
• Docket Number: No. 3961.,3961.
• Parties: ELLIS v. LEWIS.
• Court: Texas Court of Appeals

142 S.W.2d 294

ELLIS v. LEWIS.

No. 3961.

Court of Civil Appeals of Texas. El Paso.

June 20, 1940.

Appeal from Reeves County Court; J. B. Woolfolk, Judge.

Action by Bob Lewis against R. E. Ellis to recover damages for the death of a horse as the result of being struck by defendant's truck. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

James D. Willis, of Pecos, for appellant.

John G. Renken, of Pecos, for appellee.

PRICE, Chief Justice.

This suit was filed in the Justice's Court in and for Precinct No. 1, Reeves County, Texas, by Bob Lewis, as plaintiff, against R. E. Ellis, trading under the name of M System Grocery & Market, as defendant. Plaintiff sought to recover damages by reason of the alleged negligence of defendant's employee in running into a horse of plaintiff's. In the Justice's Court the judgment was in favor of the plaintiff in the sum of $100. Appeal was perfected by the defendant to the County Court. A trial was there had before a jury, the cause submitted on special issues, and, on the answers returned, the court entered judgment against the defendant in the sum of $100. From this judgment the defendant perfected this appeal.

The parties will be designated here in accordance with the designation they bore in the County Court.

In substance, plaintiff alleged that on the 29th day of August, 1938, he was loading two of his horses into a "pickup" truck, and had left one of said horses standing with the reins to the bridle down; the horse had been trained to stand in such manner; that another horse neighed, and plaintiff's said horse ran onto State Highway No. 27, where he was struck by defendant's delivery truck. Several grounds of negligence were averred as to the manner in which said truck was being driven; injury to the horse by the collision to such an extent that it was necessary to have same destroyed was averred. The reasonable cash market value of the horse was alleged to be $150.

Defendant's answer consisted of a general denial, special denial; among other defenses specially pleaded was an ordinance of the City of Pecos forbidding animals running at large and a violation of this ordinance by the plaintiff; detailed pleas of contributory negligence on the part of the plaintiff; and a cross-action alleging that defendant was damaged by the negligence of plaintiff in the sum of $50 due to injuries caused to his delivery truck by reason of such negligence.

Defendant urged some ninety odd grounds in his motion for a new trial, filing twenty-eight assignments of error in his brief.

A brief recital of the facts may aid in the discussion of the issues tendered by this appeal.

Plaintiff lived on Oak Street in the City of Pecos, a street running north and south, we presume; his house was one-half block west from Highway 27, known as the Fort Stockton Highway; there was an open space between his house and Highway No. 27; on the morning in question he was engaged in loading two horses in a "pickup" truck for the purpose of transportation to his ranch; one of these horses was evidently saddled and bridled; this horse was standing in proximity to the truck with the bridle reins hanging down in the usual and customary manner, the horse having been customarily controlled in this manner; somewhere in the neighborhood across Highway No. 27 another horse neighed; plaintiff's horse started in the direction of that animal, and in so doing went onto Highway 27, where he was either struck by, or ran into, the truck then operated by defendant's employee in defendant's business; at the time of the accident defendant's truck was being driven southerly on Highway No. 27; the accident occurred within the city limits of Pecos; at the time of the occurrence the City of Pecos had in force an ordinance relative to livestock, Article 1 of which is as follows: "The running at large within the limits of the Town of Pecos, Texas, of any cattle, horses, mules, sheep, goats, jacks, jennets, or hogs, shall be and is hereby prohibited."

The testimony is conflicting throughout as to the speed at which the defendant's truck was driven, and as to whether the truck ran into plaintiff's horse, or plaintiff's horse ran into or on the truck.

The verdict established that defendant's truck was operated at a rate of speed in excess of twenty miles per hour, and that same was the proximate cause of the accident; that defendant's driver failed to keep a lookout; such failure was negligence; and such negligence a proximate cause of the injury to plaintiff's horse.

Special Issue No. 21 read as follows: "What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff for his damages, if any, by reason of the loss of his horse?"

On the defensive issues and the issues submitting the cross-action the findings were all against the defendant. Summarized, these are: that plaintiff's horse was not running at large at the time of the collision; plaintiff was not guilty of negligence in permitting his horse to stand with its reins down.

Special Issue No. 6 submitted as to whether, at the time and place in question, defendant's truck was driven at a rate of speed in excess of twenty miles per hour. Special Issues No. 12 and No. 27 submit the identical issue. The issue of the failure of defendant to keep a lookout is submitted in almost the identical form in Special Issues 15, 19 and 30. Complaint is made as to these duplications on the ground that it gives undue emphasis to such issues. We can conceive of no good reason for submitting any single issue more than once, and it is unquestionably error to do so.

Speer, Special Issues, Sec. 188, p. 245.

Complaint is made of the court's...