Green v. Evans
| Decision Date | 26 October 1962 |
| Docket Number | No. 16039,16039 |
| Citation | 362 S.W.2d 377 |
| Parties | G. O. GREEN, Appellant, v. Albion A. EVANS et ux., Appellees. |
| Court | Texas Court of Appeals |
Ross Huffmaster, Kaufman, Jesse Rickman, Terrell, for appellant.
Wayne Pearson, Dallas, for appellees.
Appeal by G. O. Green from a judgment based upon a jury verdict rendered on a suit brought by Albion A. Evans to recover damages to his automobile caused by a collision with a cow owned by Green.
Evans alleged that about 7:35 P.M. on April 16, 1960 he and his wife were traveling in their automobile along State Farm Road #987 in Kaufman County, Texas when a cow owned by Green ran across the road and struck the front of the vehicle, resulting in damages thereto. Various acts of negligence were alleged by plaintiff. It was first charged that defendant was guilty of negligence in that he violated Art. 1370 of the Penal Code of the State of Texas, Vernon's Ann.Civ.St. art. 1370, by knowingly permitting his cattle to run at large. In addition, plaintiff alleged that defendant had failed to maintain adequate fences and gates to confine his cattle and that such failure was negligence and a proximate cause of the damage to plaintiffs' automobile. Defendant answered with a general denial and cross-action for damages caused by the loss of his cow.
The court submitted the case to the jury on special issues, Issue No. 1 being 'Do you find from a preponderance of the evidence that the defendant failed to maintain an adequate enclosure to keep said cattle enclosed on defendant's own property on April 16, 1960?' The jury answered affirmatively; then finding such failure to be negligence which was a proximate cause of the collision. No issue was submitted to the jury on the alleged statutory violation charged by plaintiff. The jury then acquitted plaintiff and his wife from any contributory negligence and found that the accident was not the result of an unavoidable accident.
By appellant's first two points complaint is made of admission into evidence of various minutes and orders of the Commissioner's Court of Kanfman County, Texas relating to the adoption of a local stock law prohibiting cattle to run at large in Kaufman County. These instruments were obviously introduced by appellees in an effort to establish that Kaufman County had adopted a stock law which was in effect where this accident occurred, thereby supporting appellees' allegation of violation of Art. 1370 of the Penal Code. Appellant's Bill of Exception reflects that objection was made to the admission of the various instruments showing the establishment of the stock law in Kaufman County upon the grounds that no proclamation had been issued by the County Judge declaring the result of the election held to establish the stock law. Assuming, without deciding that it was error to admit the documentary evidence concerning compliance with the stock law, such error is not shown to have probably resulted in the rendition of an improper verdict and therefore harmless. Rule 434, Texas Rules Civil Procedure. The only issue submitted to the jury concerning defendant's liability was one based upon common law liability. Accordingly, the admitted testimony which could only have a bearing statutory violation could result in no prejudice to appellant since no such issue was submitted to the jury. Appellant's first and second points are overruled.
By his third point on appeal, appellant complains of the failure of the trial judge to instruct the jury how to answer the issue on unavoidable accidents following the receipt of an inquiry from the jury concerning such issue. The record reveals that the court's submitted special issue to the jury was as follows: 'Do you find from a preponderance of the evidence that the accident in question was not an unavoidable accident?
'You are instructed that in the event your finding in response to the above issue is in the affirmative, the form of your answer should be, 'it was not an unavoidable accident', and that otherwise your answer should be, 'no'.' The jury answered this issue 'Yes, it was not an unavoidable accident.'
During the deliberation of the jury a written message was delivered to the court from the jury, reading as follows: In response the court wrote the jury the following: 'You must consider the charge as submitted.'
Appellant contends that upon receipt of the inquiry from the jury indicating that they had agreed that the accident was unavoidable that it was then encumbent upon the court to instruct the jury that the question should be answered 'it was an unavoidable accident.' With this contention we cannot agree.'
In the...
To continue reading
Request your trial
-
Archer v. Storm Nursery, Inc.
...146 Tex. 265, 206 S.W.2d 243 (1947); Adams v. Gray, 448 S.W.2d 854 (Tex.Civ.App.--Houston (14th) 1969, no writ). Furthermore, in Green v. Evans, 362 S.W.2d 377 (Tex.Civ.App.--Dallas 1962, no writ), the owner of cattle was held responsible for his negligence in failing to maintain an adequat......
-
Pan Am. College v. Rojas
...Co. of New York v. Dacus, Tex.Civ.App., 239 S.W.2d 182; Dyer v. Hardin, Tex.Civ.App., 323 S.W.2d 119, writ ref. n. r. e.; Green v. Evans, Tex.Civ.App., 362 S.W.2d 377. In addition, since it is not indicated that any notice of the filing of this instrument was given adverse counsel, and beca......
-
In re C.E.M.
...the specific grounds therefore." Tex.R.Civ.P. 268. McGee's motion does not state any specific ground, as required by Rule 268. Green v. Evans, 362 S.W.2d 377, 380 (Tex.App.-Dallas 1962, no writ). McGee's motion did not include any contentions about the insufficiency of the evidence she now ......
-
Ramey v. Richardson
...demonstrating criminal intent on the part of the defendant or that he 'knowingly' permitted the steer to roam at large. Green v. Evans (Tex.Civ.App.), 362 S.W.2d 377. I would reverse the judgment of the trial court and remand the cause for retrial on its ...