Green v. Ligon

• Decision Date: 26 October 1945
• Docket Number: No. 14719.,14719.
• Citation: 190 S.W.2d 742
• Parties: GREEN v. LIGON.
• Court: Texas Court of Appeals

190 S.W.2d 742

GREEN v. LIGON.

No. 14719.

Court of Civil Appeals of Texas. Fort Worth.

October 26, 1945.

Rehearing Denied December 7, 1945.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Suit by Tom Ligon, for himself and as next friend of his minor daughter, Yvonne Ligon, against W. B. Green to recover for injuries sustained by the minor and expenses incurred by the father when the minor was run over by a station wagon driven by defendant's employee. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Raymond E. Buck and George C. Kemble, both of Fort Worth, for appellant.

Hal S. Lattimore and J. Rob Griffin, both of Fort Worth, for appellee.

SPEER, Justice.

This suit was instituted by Tom Ligon for himself, and as next friend for his five year old daughter, Yvonne Ligon, against W. B. Green, on account of injuries sustained by the child and the consequent expenses incurred and to be incurred by the father in hospital, medical, nurses, and ambulance bills and for loss of time and wages sustained and to be sustained by the father, Tom Ligon.

Allegations are made that the driver of a station wagon belonging to Green, while in the discharge of his duties as an employe, negligently struck and ran over Yvonne Ligon; that she thereby suffered serious and permanent injuries. There were further allegations of the items of expense incurred and to be incurred by the father, Tom Ligon, because of the injuries sustained by the child. Allegations were made of eight instances of negligence of the driver of the station wagon claimed to be proximate causes of the accident and injuries to the child and the damages to the father.

Defendant Green answered generally denying all the allegations of plaintiff's petition and specially that the driver of the car was acting in a careful and prudent manner at the time the child was struck and set out five instances in which it was asserted that Yvonne Ligon was guilty of contributory negligence which were proximate causes of the injuries sustained by her.

At the conclusion of taking testimony defendant Green filed a motion for an instructed verdict in his behalf and gave numerous reasons therefor, among which it was claimed that there was no negligence shown upon the part of his employe and that all injuries sustained by plaintiffs were proximately caused by the contributory negligence of the child Yvonne Ligon, as a matter of law. This motion was "refused" by the court.

Special issues were submitted to the jury, and the verdict was favorable to the plaintiffs.

After verdict was returned defendant Green filed his motion for judgment non obstante veredicto upon the grounds that the court should have granted his motion for a directed verdict; that the court should disregard the jury's answers to special issues 4, 5, 6, 7, and 9. In his motion he asserts that there was no testimony of probative value to authorize the submission of any of said issues. The motion was "refused and denied" by the court and judgment was entered for plaintiffs for the aggregate sum of $5,000, apportioned $3,000 to Yvonne Ligon and $2,000 to Tom Ligon. Defendant's motion for a new trial was overruled, and he has perfected his appeal.

Appellant Green presents thirteen points of error, but because of the disposition we have concluded should be made of this cause, we shall not discuss each of the points in detail.

The testimony discloses that defendant Green was a florist and employed Scott Sayers to drive his station wagon to deliver flowers; that Sayers was 16 years old, had a driver's license and was engaged in his master's business when the accident happened; that Yvonne Ligon, the injured child, was five years old. The court gave in his charge the usual definition of negligence as applicable to the driver of the car. Relating to Yvonne Ligon, the court charged: "Negligence, as to Yvonne Ligon, is the failure to use that care which a person of ordinary prudence, of the intelligence, experience, capacity and discretion of Yvonne Ligon would use under the same or similar circumstances."

Points one and two assign error because the court refused to give appellant's request for a peremptory instruction, based upon the contentions that the testimony failed to show negligence by the driver of the car and that it affirmatively appeared that Yvonne Ligon was guilty of contributory negligence as a matter of law, proximately causing her injuries. If the testimony raised fact issues on these points, of course, no peremptory instruction should have been given. We shall refer to some of the testimony in this connection under the next point raised.

Third point assigns error because the court declined to enter judgment for appellant notwithstanding the verdict. It is contended that there was no testimony authorizing the submission of the issues upon which the jury had returned its verdict. Appellant points out the issues and answers complained of. They are Nos. 4 and 5 relating to the negligence of the driver of the car in failing to turn the car to his left; Nos. 6 and 7 relating to the speed of the car immediately prior to the accident; No. 10 relating to the child's failure to keep a proper lookout; No. 13, which relates to the child's negligence in attempting to "jay-walk" across the street; and No. 15, inquiring if the child was negligent in attempting to cross the street in front of a parked car. Appellant asserts that there is no testimony to support the jury verdict in response to the above inquiries. The numbered issues referable to the negligence of appellant's driver are in pairs because negligence and proximate cause were found in those instances and the issues concerning the child are single because negative answers were given.

In response to first special issue the jury found that the driver of the station wagon did not fail to keep a proper look-out. Under issue No. 4, one of those here complained of, it was found that the driver was negligent in failing to turn his car to the left just prior to the time he struck the child, and by No. 5, that his failure to do so was a proximate cause. The driver testified that he did not turn to the left because he did not see the child. He also said he was driving about 15 miles per hour; that if he had seen her he could have stopped "instantly" or could and would have turned left within the space of about five feet, that in either event he would not have hit her. There was a parked car close to the place of collision; it was facing north, the direction the driver was going. The driver said he had heard children playing and "yelling," as if calling someone, quite a distance before he reached the parked car; he said he looked for the children and saw them on a lawn to his left; he also saw the parked car. The testimony is conflicting as to the distance from the front of the parked car to where Yvonne was struck; various estimates ranged from 3 or 4 to 12 or 15 feet. Under the driver's testimony, he would have missed her if he had seen her as much as five feet away—he said he did not see her and there is no intimation by anyone that he did. The jury found that the driver was keeping a proper look-out, thus acquitting himself of negligence in this respect. By the answer to issue 4, the driver is convicted of negligence for having failed to turn his car to the left and thus avoid striking the child. If, as found by the jury, he was keeping such look-out as an ordinarily prudent person would have kept under the circumstances, and did not see the child, it is difficult to understand why the jury found in response to issue 4 that an ordinarily prudent person would have turned his car to the left and missed a child he had not seen, by the exercise of such care as the law imposed upon him. The jury also found that it was not an unavoidable accident. However, even if the answers to issues 4 and 5 could or should have been disregarded by the court on appellant's motion, the answers to issues 6 and 7 would sustain the court's ruling.

Special Issue No. 6 reads: "Do you find from a preponderance of the evidence that the operation of the station wagon at the rate of speed which you may believe and find it was being operated at the time of and immediately prior to the accident to Yvonne Ligon was negligence (as that term is defined for you with reference to the driver of the station wagon)?" The answer was "Yes." By answer to the 7th issue it was found to be a proximate cause. Appellant objected to the submission of issue No. 6 becaue (a) there was no pleading to authorize it; (b) it embraced two questions requiring a single answer; and (c) there was no testimony upon which to base the issue as submitted. As one of the acts of negligence by the driver, it was alleged that: "The driver of the truck was driving the truck at a dangerous and excessive rate of speed at the time and under the circumstances in question." No exception was urged to the pleading, in the absence of which if there was evidence to justify, the issue should have been submitted covering the allegation. The inquiry made by the issue submitted is much broader than the allegation, and we think objectionable upon other grounds. It will be observed that this was not an inquiry of whether the driver was violating a state law or City Ordinance, but one in the nature of a common law right of the injured party. In such circumstances the rate of speed at which one may be driving cannot be measured in miles per hour, in arriving at an answer to the question; but broadly speaking, it was an allegation that he was driving too fast "under the circumstances" surrounding the incident. He testified that he did not see the child; we know he struck her; he said he was driving 15 miles per hour, and no one said anything to the contrary; if he had seen her, he said he could have stopped "instantly" or could have turned to his left within five feet, and that in either event he...