Graham v. Dallas Ry. & Terminal Co., 13218.

• Decision Date: 16 October 1942
• Docket Number: No. 13218.,13218.
• Citation: 165 S.W.2d 1002
• Parties: GRAHAM v. DALLAS RY. & TERMINAL CO.
• Court: Texas Court of Appeals

165 S.W.2d 1002

GRAHAM v. DALLAS RY. & TERMINAL CO.

No. 13218.

Court of Civil Appeals of Texas. Dallas.

October 16, 1942.

Rehearing Denied November 13, 1942.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by Minnie Mae Graham against Dallas Railway & Terminal Company for injuries sustained when plaintiff was struck by a street car belonging to defendant. From a judgment for defendant after plaintiff's motion for judgment non obstante veredicto was overruled, plaintiff appealed.

Reversed and remanded.

Milton K. Norton and Chaney, DeShazo & Hyde, all of Dallas, for appellant.

Burford, Ryburn, Hincks & Charlton, of Dallas, for appellee.

YOUNG, Justice.

The Court, on its own motion, withdraws its former opinion herein, of date June 26, 1942, and in lieu thereof substitutes the following as our opinion in this case; the judgment heretofore rendered in the matter of reversal and remand not being disturbed; and subject to motions for rehearing, as before:

Plaintiff's suit for personal injuries in the trial court resulted in a defendant's judgment upon jury issues; and appellant's major contention here is that aforesaid jury verdict was favorable to her in amount of $2,572, and, if mistaken in this, that certain material answers were conflicting and irreconcilable, for which reason, the court erred in refusing to declare a mistrial.

Before detailing the jury findings as a whole, the surrounding facts to the occurrence should be described. Plaintiff had just alighted from a street car on which she had been a passenger, when she was struck by another of defendant's cars moving in the opposite direction on parallel tracks. The situs was near the intersection of Hillcrest and Asbury, University Park, defendant maintaining a double track system from the City of Dallas north to this point, where a switch is located; the line narrowing to a single track for two blocks farther north to its end. Defendant's trackage is located along the west side of Southern Methodist University grounds, being between the campus and Hillcrest Avenue, a principal street of that section, running north and south. Outbound passenger cars, or those proceeding northwardly to the end of the line, used the west track, while inbound cars running south to Dallas operated on the east track. Near Hillcrest and just south of Asbury, defendant maintains a graveled section between the tracks for purpose of receiving and discharging passengers, a space some 8½ ft. wide and 57 ft. in length; and in event an outbound car should reach this point while an inbound car was on the single track to the north of Asbury, it must necessarily wait until the opposite car moved down past the switch and onto the east line of tracks. Likewise, defendant's outbound cars discharged and received patrons from the right, adjacent to this loading zone; and there is testimony (1) that passengers alighting here would continue across the east tracks to the University grounds, and (2) that the operator of an inbound car ordinarily stopped to the north of Asbury until the car facing it had fully unloaded and the zone cleared (Mr. Pou, the inbound motorman, testifying that from his view of the opposite car, he had concluded such to be the case on this occasion). A wooden trolley pole some 12 inches in diameter stood about the midway center of this loading zone.

Just prior to the accident in question, the outbound car had discharged its passengers from the right front exit to the platform, and the motorman in charge had closed the door, awaiting an inbound car to clear the single track from the end of the line and take the east of these double tracks. The rear door of the outbound car was also closed, but susceptible of reopening by means of a foot treadle; and plaintiff, thus opening the door, was hit by the passing inbound car just after she had stepped from said doorway to the loading zone; it being contended that aforesaid trolley pole to the left of plaintiff as she debarked, materially obscured her view of the approaching car.

In view of the points presented on this appeal, the jury issues and answers must be quoted, viz.: "Issue 1: Do you find from a preponderance of the evidence that the defendant failed to provide a safe and sure footing for its passengers after alighting from said street car at the place where the plaintiff alighted from said street car on the occasion in question? Answer: No. (Issues 2 and 3 not answered) Issue 4: Do you find from a preponderance of the evidence that the defendant's motorman in charge of defendant's street car which came in contact with the plaintiff on the occasion in question failed to wait until all passengers, which had been discharged from the northbound street car on the occasion in question had moved from the tracks of the defendant to a place of safety before moving said southbound street car by the place where passengers had been discharged by the northbound street car? Answer: Yes. Issue 5: Do you find from a preponderance of the evidence that such failure, if any you have found in answer to special issue No. 4, was negligence as that term is herein defined? Answer: Yes. Issue 6: Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to special issue No. 5, was a proximate cause of the collision between the plaintiff and the street car? Answer: Yes. Issue 7: Do you find from a preponderance of the evidence that the rate of speed at which defendant's motorman was driving said street car immediately prior to and at the time it collided with the plaintiff was negligence, as that term is herein defined? Answer: Yes. Issue 8: Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to special issue No. 7, was a proximate cause of the collision between the plaintiff and the street car, as the term `proximate cause' is defined herein? Answer: Yes. Issue 9: Do you find from a preponderance of the evidence that defendant's agents,...