Gersdorf-Sloan Ambulance Service v. Kenty

• Court: Texas Court of Appeals
• Writing for the Court: Smith
• Citation: Gersdorf-Sloan Ambulance Service v. Kenty, 75 S.W.2d 903 (Tex. App. 1934)
• Decision Date: 02 May 1934
• Docket Number: No. 9355.,9355.
• Parties: GERSDORF-SLOAN AMBULANCE SERVICE, Inc., v. KENTY.

75 S.W.2d 903

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

No. 9355.

Court of Civil Appeals of Texas. San Antonio.

May 2, 1934.

Rehearing Granted October 3, 1934.

Rehearing Overruled November 14, 1934.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Butler Kenty against the Gersdorf-Sloan Ambulance Service, Inc. Judgment for plaintiff, and defendant appeals.

Reversed, and judgment rendered.

R. H. Mercer, of San Antonio, for appellant.

Charles Lieck and Wm. E. Calvert, both of San Antonio, for appellee.

SMITH, Justice.

While crossing a business street in San Antonio, appellee collided with an ambulance owned and operated by appellant, and recovered judgment against the latter for personal injuries sustained in the collision.

The jury found, upon conclusive evidence, that appellee was guilty of contributory negligence directly causing or contributing to his injury, but further found, upon conflicting evidence, against appellant upon the theory of discovered peril. This is the second appeal in the case. Gersdorf, etc., v. Kenty (Tex. Civ. App.) 46 S.W.(2d) 469.

The case is fully stated in the former opinion of this court, and, as the evidence was substantially the same upon both trials we see no occasion to restate the case here.

Upon the last trial, the theory of discovered peril was raised by the evidence and was submitted with substantial accuracy both in form and in substance, and all of appellant's propositions complaining of that submission, being propositions 1 to 11, inclusive, and 18 to 22, inclusive, will be overruled.

Appellant contends that, as there was no specific finding that the ambulance with which appellee collided belonged to appellant and was driven by an agent of appellant, the verdict was not sufficient to support the judgment. We overrule this contention. It is true there was no specific finding of the facts stated. But the evidence, admitted without objection, was undisputed and conclusive that the vehicle in question belonged to appellant, was being operated by appellant's agents, and was actually engaged at the moment upon a routine errand for appellant in the prosecution of its regular business. In such situation, the failure of the court to submit such issue or of the jury to find thereon does not justify reversal of a judgment resting upon those undisputed facts. We overrule appellant's propositions 12 to 17, inclusive.

In its twenty-third proposition appellant complains of the remarks of the trial judge during appellee's examination of one of his witnesses, concerning the proper course of pedestrians situated as appellee was on the occasion of the accident here in question. The colloquy was participated in by the court, by Mr. Mercer, attorney for appellant, and Mr. Lieck, attorney for appellee, and was precipitated by the following question propounded by Mr. Lieck to the witness, followed by the colloquy:

"Q. Now, then, I will ask you what is your testimony with reference to the route—the direct route a pedestrian would take to come from Commerce Street here through Cochran to get over to Huth's Feed Store or that restaurant there shown on the map?

"The Court: It seems to me we are wasting time uselessly.

"Mr. Lieck: We except to the Court's ruling.

"The Court: Please wait until I make my statement. It is obvious that the direct route is straight across the street from the corner to the opposite side, it is so obvious that I don't think you ought to waste time on it.

"Mr. Mercer: I don't exactly understand what the Court means by that.

"The Court: I mean, according to the plat, to which there does not seem to be any contest, it appears obvious that the fire plug is directly across from the corner of that street.

"Mr. Mercer: Now, I want to take a bill to the remarks of the Court, because I think I have shown that there is no mark there which says pedestrians can cross here.

"The Court: No mark here?

"Mr. Mercer: That is what the witness Hansen testified to yesterday.

"The Court: I don't think there is any such sign.

"Mr. Mercer: There is no such sign there, and I am going to introduce an ordinance in evidence to complete my bill.

"The Court: Just state the grounds of the bill, and then we will go on and try the case.

"Mr. Mercer: The ground of my bill is that the Court's remarks are conclusions on the situation we have here.

"The Court:...