Fernandez v. Rahe

• Court: Texas Court of Appeals
• Writing for the Court: Jackson
• Citation: Fernandez v. Rahe, 61 S.W.2d 529 (Tex. App. 1933)
• Decision Date: 17 May 1933
• Docket Number: No. 4030.,4030.
• Parties: FERNANDEZ v. RAHE.

61 S.W.2d 529

FERNANDEZ v. RAHE.

No. 4030.

Court of Civil Appeals of Texas, Amarillo.

May 17, 1933.

Rehearing Denied June 21, 1933.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by Clemente Fernandez, by his father as next friend, Gorgonio Fernandez, against Walter Rahe. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

J. O. Calvert, of Austin, and Chas. J. Lieck, of San Antonio, for appellant.

Alvin P. Mueller, of Seguin, for appellee.

JACKSON, Justice.

The appellant, by his father as next friend, Gorgonio Fernandez, instituted this suit in the district court of Bexar county against the appellee to recover damages for personal injuries which he alleged he had sustained on account of the negligence of appellee.

The appellant alleged that on September 20, 1931, he was a minor approximately 9 years of age, and while standing in Colorado street in San Antonio, near the curb, he was struck by an automobile owned by appellee and driven by his son, Elmer Rahe; that the driver was operating the car at a negligent rate of speed, failed to keep a proper lookout or have the car under control or give appellant warning of the approach thereof; that he discovered appellant's position of peril in time to have avoided the collision by the means at hand if he had exercised ordinary care to slow down, stop, or turn the automobile aside, all of which he failed to do; that each of said acts were separate acts of negligence, and each directly caused or contributed to appellant's injuries. He sufficiently pleads his injuries, physical pain, and mental anguish, and asks damages in the sum of $7,500.

The defendant answered by demurrers, general denial, unavoidable accident, and alleged that the appellant at the time of the accident was on and playing in Colorado street, a public street of San Antonio upon which there was much traffic, and was hidden from the view of appellee and the driver by cars, and ran into the automobile of appellee, which acts constituted contributory negligence; that appellee carried the appellant to the Santa Rosa Hospital, where he had him treated, furnished him with all necessary medical and hospital attention, for all of which appellee paid.

In response to special issues submitted by the court, the jury found, in effect, that the driver of the car was not negligent in failing to give appellant warning of the approach of the automobile; that he kept a proper lookout to discover the presence of other persons using the street; that he failed to slow down, but such failure was not negligence; that appellant was in the portion of the street usually used by vehicles and was guilty of negligence in occupying such position; that such negligence was the proximate cause of his injuries; that he ran out from between two cars and in front of appellee's car, which was negligence and the proximate cause of his injuries; that under all the facts and circumstances the driver was not operating the automobile at an excessive rate of speed; that the accident was not unavoidable and appellant was not damaged.

In response to a special issue requested by appellant, the jury found that the driver of the automobile kept it under control as it approached the point of collision.

On these findings the court rendered judgment against appellant, and he appeals.

The appellant assails as error the failure of the court to submit to the jury the issue of discovered peril.

He pleaded discovered peril, objected to the court's charge because it failed to submit that issue to the jury, and properly requested a special issue submitting discovered peril. His objection to the court's charge was overruled, and his requested issue refused.

"If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of plaintiff" on discovered peril, such issue should have been...