Glazer v. Wheeler, 5015.

• Decision Date: 01 May 1939
• Docket Number: No. 5015.,5015.
• Citation: Glazer v. Wheeler, 130 S.W.2d 353 (Tex. App. 1939)
• Parties: GLAZER v. WHEELER et al.
• Court: Texas Court of Appeals

Page 353

130 S.W.2d 353

GLAZER v. WHEELER et al.

No. 5015.

Court of Civil Appeals of Texas. Amarillo.

May 1, 1939.

Rehearing Denied June 26, 1939.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by Nona Wheeler against Joseph Glazer, doing business under the tradename of Uncle Jo Bottling Works, and the Dallas Railway & Terminal Company, to recover damages sustained in a collision between a street car of the Dallas Railway & Terminal Company, in which plaintiff was a passenger, and a truck owned by Joseph Glazer. From a judgment in favor of the plaintiff as against Joseph Glazer, he appeals.

Judgment reversed, and cause remanded.

Thompson, Knight, Baker, Harris & Wright, J. Hart Willis, and William A. Rembert, all of Dallas, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellant.

Burford, Ryburn, Hincks & Charlton, Haney, Craig, DeShazo & Hyde, and Francis M. Chaney, all of Dallas, for appellees.

FOLLEY, Justice.

Mrs. Nona Wheeler, a widow, filed this suit against Joseph Glazer, doing business under the trade name of Uncle Jo Bottling Works, and the Dallas Railway & Terminal Company, a corporation, to recover damages alleged to have been sustained by her in a collision between a street-car belonging to the Dallas Railway & Terminal Company, in which she was riding as a passenger, and a truck owned by Joseph Glazer. We shall designate the parties as they were known in the trial court.

The collision occurred on October 17, 1936 in heavy traffic at the intersection of Young and Austin Streets in the City of Dallas. The truck of the defendant Glazer was traveling west on Young Street and the street-car of the defendant railway company was traveling north on Austin Street. A brick building stood at the southeast corner of this intersection. There was a double set of street-car tracks at this point on Austin Street. At the time of the collision another street-car of the defendant railway company was traveling south on the west side of Austin Street. Although the testimony as to the position of this south bound car is somewhat conflicting it was determined by the jury that this car had entered the intersection of the two streets after the north bound street-car had entered such intersection.

The plaintiff alleged various acts of negligence against each of the defendants as being the proximate cause of her injury and sought judgment against both defendants jointly and severally. Neither of the defendants alleged or proved any contributory negligence upon the part of the plaintiff, but each of the defendants attempted by pleadings and proof to shift the responsibility to the other, and each defendant sought contribution over against the other in the event the plaintiff recovered judgment. The court submitted various issues as to the negligence of each of the defendants and inquired as to whether or not such negligence was a proximate cause or the sole proximate cause of the collision. The jury found that the entrance of the south bound street-car into the intersection after the north bound car had entered such intersection was negligence, but found that such negligence was not the sole proximate cause of the collision. This issue was based not upon the allegations of the plaintiff but upon the allegations of the defendant Glazer who alleged only that such act was the sole proximate cause of the collision. Therefore no issue was submitted as to this act being a proximate cause of the collision. Other than this finding the jury completely exonerated the defendant railway company of any negligence, but found the defendant Glazer guilty of seven distinct acts of negligence each of which was also found to be a proximate cause of the collision. The jury assessed the damages in the sum of $8,500.

Based upon this verdict of the jury the court rendered judgment in favor of the plaintiff and against the defendant Glazer for the sum of $8,500 but denied the plaintiff any recovery against the defendant railway company. The court also denied the defendant Glazer's claim for contribution against the railway company. From such judgment Glazer appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas at Dallas. The Supreme Court of Texas thereafter transferred the cause to this Court and the case is now properly before us.

In connection with the assignments which follow we wish to state that it is our opinion the evidence was sufficient to have sustained a finding of negligence on the part of the railway company if the jury had so found. There was also sufficient testimony to have sustained a finding that such negligence was a proximate cause of the collision. It is also our opinion that the pleadings of the defendant Glazer were sufficient to raise the question of contribution between him and the railway company and that such pleadings were sufficient to have shifted the entire responsibility upon the railway company if the jury's findings had concurred with Glazer's allegations. 10 Tex.Jur. 563, para. 21.

The trial court defined "ordinary care", "negligence" and "proper look-out", as follows:

"By the term `ordinary care' as that term is used in this charge, is meant that degree of care that would be exercised by a person of ordinary prudence under the same or similar circumstances.

"By the term `negligence' as that term is used in this charge, is meant a failure to use ordinary care.

"By the term `proper lookout' as the same is used in this charge is meant such a lookout as a person of ordinary prudence would exercise under the same or similar circumstances."

The defendant Glazer presents as error the submission of the issues of negligence charged against his codefendant under the above definitions because the pleadings and the evidence showed that the plaintiff was a passenger on the street-car of the defendant railway company. He asserts that under such circumstances the railway company was charged with a high degree of care in the protection of its passengers; that the railway company was charged with that degree of care which would be exercised by a very cautious and prudent person under the same or similar circumstances; that such burden of care was nowhere in the court's charge placed upon the railway company, but that the same degree of care was placed upon Glazer as was placed upon the railway company; that such action on the part of the court permitted the jury to allow the railway company to escape liability by submitting a lower degree of care than that required of it by law, all of which was prejudicial to the rights of the defendant Glazer; that if the proper burden of care had been placed upon his co-defendant the jury might have reached a different conclusion as to the negligence of the railway company; that in such event all the liability might have been placed upon the railway company and thus discharged Glazer of any liability or the jury might have found both of the defendants guilty of such negligence as would have proximately caused the collision; and that in the latter event the defendant Glazer would have been entitled to contribution from his codefendant for one-half of the amount of the judgment.

In the case of Dallas Railway & Terminal Co. v. Travis et al., 125 Tex. 11, 78 S. W.2d 941, 942, wherein the plaintiff therein sued the defendant for injuries received by her while a passenger on the street-car of the defendant, it is said: "It is the settled rule in this state that street railway companies are common carriers of passengers, with duties and responsibilities the same as those of a railroad company carrier of passengers, and are required to exercise a high degree of care and skill in their transportation by providing suitable tracks, rolling stock and appliances, and in the management of their business and movement of their cars." (Citing numerous authorities.)

In the Travis case the court gave the same definition of ordinary care as was given in the instant case. Following such definition the trial court in the Travis case gave the jury the following instructions: "It was the duty of the plaintiff upon the occasion in question to use `ordinary care' for her own safety, and a failure, if any, to do so, was negligence of the plaintiff. * * * It was the duty of the defendant upon the occasion in question to use a high degree of care as that term has been defined hereinabove, to avoid injuring plaintiff and a failure, if any, to do so, was negligence of the defendant." The defendant therein objected to such instructions on the ground that they constituted a general charge, that such instructions were on the weight of the evidence and gave undue prominence to the degree of care to be used. In disposing of the assignment thus raised the Commission of Appeals in the Travis case further said (page 943): "Having defined `ordinary care' as applicable to Mrs. Travis, it was necessary for the court to define `high degree of care' as applicable to the company. As said by the Court of Civil Appeals: `It could hardly be said that there was an error of law in defining `negligence' by the declaration of such existing duty, the measure of care required to discharge such duty, and the statement that the failure to exercise such care was negligence. In this case two different standards of conduct were involved—ordinary care as applied to the appellee and a high degree of care as applied to the street railway company. Previous to the paragraph of the charge complained of, the court had defined a high degree of care, negligence, and ordinary care, but had not informed the jury under what circumstances nor to whom nor how to apply the rule of negligence for failure to exercise a high degree of care, nor the rule of negligence for failure to exercise ordinary care. It was necessary for the court to give the jury some instruction to guide them when applying these two different standards. In order to distinguish between these...