Gersdorf-Sloan Ambulance Service v. Kenty

• Court: Texas Court of Appeals
• Writing for the Court: Smith
• Citation: Gersdorf-Sloan Ambulance Service v. Kenty, 46 S.W.2d 469 (Tex. App. 1932)
• Decision Date: 06 January 1932
• Docket Number: No. 8701.,8701.
• Parties: GERSDORF-SLOAN AMBULANCE SERVICE, Inc., v. KENTY.

46 S.W.2d 469

GERSDORF-SLOAN AMBULANCE SERVICE, Inc., v. KENTY.

No. 8701.

Court of Civil Appeals of Texas. San Antonio.

January 6, 1932.

Rehearings Denied February 24, 1932.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Butler Kenty against the Gersdorf-Sloan Ambulance Service, Inc. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

R. H. Mercer and R. L. House, both of San Antonio, for appellant.

Charles J. Lieck, J. Ed. Wilkins, Walter Groce, and Edward Dwyer, all of San Antonio, for appellee.

SMITH, J.

This was an action for damages for personal injuries brought by Butler Kenty, appellee, an 89 year old and decrepit man, against the Ambulance corporation, appellant. It was alleged in his petition that, while crossing a business street in the downtown district of San Antonio, appellee was negligently struck and seriously injured by one of appellant's ambulances. As grounds of negligence, appellee alleged that the driver of the ambulance failed to keep a proper lookout and give a proper warning, that he was driving at an excessive speed and failed to keep the vehicle under control. Appellee also pleaded discovered peril, and upon the trial abandoned all the grounds of negligence except that of discovered peril. Appellant defended upon allegations, as stated in its brief, that: "Just before and at the time of the accident the yellow lights were flashing, indicating danger, and giving the ambulance the right of way, as it was on an emergency call taking people in a dying condition to the hospital, and that the plaintiff negligently started across in the middle of the block in the business district of the City of San Antonio when the yellow lights were flashing and ringing, showing danger, and when the gong on the ambulance was sounding, and when people were hallooing at him telling him to go back to the sidewalk, and that after plaintiff got out in the middle of the street he turned around and started back to the south side of said street and then turned around again and ran north into the side of the ambulance, which the skillful driver had turned to the driver's right and stopped with a slight jar against a truck that was parked on the street." Upon the trial, and in response to jury findings upon the issue of discovered peril, and amount of damages, judgment was rendered in favor of appellee for $3,600. The ambulance company has appealed.

In its first proposition appellant complains of the refusal of the trial court, upon proper request, to place the burden of proof upon appellee on the issue of unavoidable accident. This proposition must be sustained upon the authority of Trans. Co. v. Hash (Tex. Civ. App.) 43 S.W.(2d) 152, and authorities there cited.

The case of discovered peril was submitted to the jury through the following special issues:

"1. Was the plaintiff, Butler Kenty, in a position of imminent peril just prior to the occurrence of the accident in which he was injured?

"2. Did the employees of the defendant, in the ambulance, discover the perilous position of the plaintiff, Butler Kenty, before he collided with the ambulance?

"3. Did the employees of the defendant operating the ambulance, fail to exercise ordinary care, in the use of the means at their command, to avert the accident and injuries sustained by the plaintiff, Butler Kenty, after discovering the perilous position of said plaintiff?

"4. Did such failure directly cause the accident and injuries therein sustained by the plaintiff, Butler Kenty?"

The jury answered each issue in the affirmative.

Appellant objected to that submission of these issues upon the grounds that (1) discovered peril was not properly pleaded; (2) that that issue was not supported by the evidence; (3) that its submission in the form given omitted the elements of time, the discovery by the driver of the peril of appellee's position, and the realization of his danger, in time to avoid the accident by the use of the means at hand,...