Gause-Ware Funeral Home v. McGinley

• Decision Date: 29 June 1929
• Docket Number: (No. 12169.)
• Citation: Gause-Ware Funeral Home v. McGinley, 21 S.W.2d 347 (Tex. App. 1929)
• Parties: GAUSE-WARE FUNERAL HOME v. McGINLEY.
• Court: Texas Court of Appeals

Page 347

21 S.W.2d 347

GAUSE-WARE FUNERAL HOME v. McGINLEY.

(No. 12169.)

Court of Civil Appeals of Texas. Fort Worth.

June 29, 1929.

Rehearing Denied September 28, 1929.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by J. M. McGinley against the Gause-Ware Funeral Home. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

P. Walter Brown and Chas. T. Rowland, both of Fort Worth, for appellant.

McLean, Scott & Sayers, of Fort Worth, for appellee.

DUNKLIN, J.

G. L. Gause and J. M. Ware have appealed from a judgment rendered against them in favor of J. M. McGinley for the sum of $10,307.50, with interest thereon at the rate of 6 per cent. per annum from the date of the judgment, as damages for personal injuries alleged to have been sustained by the plaintiff as the result of a collision between a Ford automobile which he was driving and an ambulance or commercial vehicle owned by the defendants, who were doing business in the city of Fort Worth under the trade-name of Gause-Ware Funeral Home.

The undisputed facts show that the accident occurred at the intersection of Third street, running east and west, and Throckmorton street, running north and south, and that immediately prior to the collision plaintiff approached the crossing from the east, going west on Third street, and the defendants' ambulance was coming from the north and going south on Throckmorton street. When plaintiff reached the intersection of the two streets, he turned south on Throckmorton street in the direction of the west side of that street, and his car was struck by the ambulance about the time he reached the west side of Throckmorton street. As a result of the collision, the plaintiff's car was badly damaged, and he sustained serious personal injuries, by reason of which damages were awarded to him. He did not sue for damages done to his car.

In answer to special issues, the jury found (1) that immediately prior to the collision the ambulance was traveling at a speed of 20 miles an hour, and that the driving of the ambulance at that speed was a proximate cause of the collision; (2) as the driver of the ambulance approached the place of collision, he failed to keep such a lookout for automobiles approaching the intersection of the two streets from the east as a person of ordinary prudence would have kept under similar circumstances, and that his negligence in such failure was a proximate cause of the collision; (3) that the driver of the ambulance was negligent in failing to give a warning of his approach to the intersection of the two streets, and that such negligence was a proximate cause of the collision; (4) that plaintiff was not guilty of negligence in driving his automobile into the west side of Throckmorton street just prior to or at the time of the collision; and that, as he approached the place of collision, he was keeping such a lookout for vehicles approaching from the north as a person of ordinary prudence would have kept under like circumstances.

The ambulance driver was named Scott Martin. The plaintiff introduced Martin as a witness in the development of his case before the defendants offered any evidence. In answer to questions by plaintiff's counsel, he testified that on the morning of the collision he started from the defendant's funeral home on the south side of town, intending to go to a repair shop and get some snubbers installed on the ambulance, and, after taking Mr. Gause to his place of business on Weatherford street, he turned from that street into Throckmorton street and proceeded to Third street, where the collision occurred; the object of his trip being to procure the snubbers. He further testified that he did not sound the horn as he approached the street intersection because he was busy trying to stop the ambulance and was watching Mr. McGinley, who was approaching the intersection from the east, and another car approaching the same crossing from the west.

In order to show negligence on the part of Martin and before any testimony was offered by the defendant either from Martin or any other witness, plaintiff, McGinley, was permitted to testify, over defendants' objection, that, after he was carried to the hospital for treatment for his injuries, a man he was told was Scott Martin, the driver of the ambulance, came in to see him and said he was sorry the accident had happened, and further stated to plaintiff that he did not see plaintiff's car before the collision.

For the same purpose and under the same circumstances and during the development of plaintiff's case before he closed his evidence, plaintiff also introduced the testimony of Mrs. Bessie McGinley, plaintiff's mother, to the effect that she too saw Scott Martin, the driver of the ambulance, at the hospital after the accident happened, and was there told by Martin that he was very sorry that the accident had happened, and that he did not see the plaintiff until the collision occurred. Defendants' counsel objected to that testimony at the time it was admitted and also later moved to strike it out on the ground that it was hearsay, incompetent, and not admissible as impeaching testimony of Martin when no predicate had been laid therefor.

There were no facts or circumstances proven which...