Gross v. Dallas Ry. & Terminal Co.

• Decision Date: 17 June 1939
• Docket Number: No. 12682.,12682.
• Citation: 131 S.W.2d 113
• Parties: GROSS v. DALLAS RY. & TERMINAL CO.
• Court: Texas Court of Appeals

131 S.W.2d 113

GROSS v. DALLAS RY. & TERMINAL CO.

No. 12682.

Court of Civil Appeals of Texas. Dallas.

June 17, 1939.

Rehearing Denied July 15, 1939.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Action by Mary Louise Gross against the Dallas Railway & Terminal Company for injuries sustained when a street car of the defendant struck an open automobile door near which plaintiff was standing. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Jas. D. O'Connor and Carden, Starling, Carden & Hemphill, all of Dallas, for appellant.

Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, for appellee.

LOONEY, Justice.

Mary Louise Gross brought this suit against Dallas Railway & Terminal Company, to recover damages for personal injuries alleged to have been caused by its negligence. The defendant's answer contained a general denial and special pleas of contributory negligence. It will not be necessary to summarize the pleadings of the parties, as the findings of the jury in answer to special issues on defendant's negligence and plaintiff's contributory negligence indicate satisfactorily the issues framed by the pleadings. The jury found the defendant guilty of actionable negligence in several respects; also found plaintiff guilty of contributory negligence in several respects. The court rendered judgment for the defendant, from which plaintiff appealed.

The accident occurred on Second Avenue, in the City of Dallas, under substantially the following circumstances: Second Avenue is sixty feet in width, runs north and south, has a concrete curb in its center, which divides the paved portion of the street on the west, used for vehicular traffic, from the graveled half of the street on the east occupied by four street car tracks. The southbound track next to the center curb, is close enough that the overhanging portion of a street car is almost even with the curb. Early in the morning of the day of the accident, plaintiff and others were in a Model A Ford automobile, four including plaintiff occupying the front seat, traveling north on Second Avenue and had stopped the car next to the center curb, about the middle of a block, to let one of the four occupants of the front seat out of the car; plaintiff opened the door of the car, stepped out on the cement curb, turned in a leaning position beside the open door of the car, facing inward with her hand upon the door and elbow on the car window, back toward the railway tracks, was in a conversation with the occupants, waiting for her companion to alight, when a southbound street car struck the tip of the extended car door, by or against which plaintiff was standing, throwing her inside the car, in the midst of the occupants of the front seat, causing the injuries of which she complains.

Doubtless, a description as to how the accident occurred is best described in plaintiff's own language; she testified:

"I live out at Sceyenne, and lived there since before this accident happened. I have lived there twenty-four years. I came into town on Second Avenue all that time, right past that location where this occurred. I knew that the tracks were there where this accident happened. I knew that they had street cars going up and down there, and where this accident happened the track was a straight track. The condition of the track out there, we will say from Grand Avenue to Parry Avenue, was straight to Parry, and there it turned to the right, going to town, and to the left going out of town, on Second. There were no buildings or structures along there to keep me from seeing the street car, or any cars along there. When I got out of the car there, I had my face turned in toward the automobile, after I got out. When I got out I turned around and looked in toward the automobile. When I was doing that I was listening to the conversation that was going on in there. The conversation was between Mayola and Lee. I did not see any street car at the time I got out. I suppose I wasn't paying any attention to any street car. I got out of the automobile and stepped over onto the curb there from the automobile. I held the door open and permitted it to stay open during the entire period there, and did that without paying any attention to the street car that was coming along there." S.F. p. 58 and 59.

"Before I got out, I opened the door and looked North, and after I looked North I opened the door and got out, and then I opened the door and got out and turned around and leaned on the window and looked back into the car, waiting for Miss Mayola to get out." S.F. p. 59.

"When I was sitting there, with my head up in the top of the car, I took one look and had to bend forward to look out, that was all the looking that was done, so far as the street car was concerned, and I did not see any street car at all. I got out, and as I did so I was looking, and that was all the looking I did." S.F. p. 59 and 60.

"While I was listening to that conversation I did not pay any particular attention to the street car. I did not see the car and do not know what portion of it hit the automobile. I was standing with my head pointed into the car door, standing on the curb with my right hand leaning there on the door. My side was right up against the door, and when I was hit, the door was struck by the street car, and kind of slammed it to, and somehow threw me over into the car, and across her lap. The door and I both moved at the same time. In other words I wasn't fronting the door, I was leaning kind of to the side against it, and both me and the door started moving at once." S.F. p. 60.

The jury found the defendant guilty of actionable negligence as follows: (1) In the failure of the operator of the street car to stop before it came in contact with the door of the automobile; (2) with reference to the matter of giving warning by sounding the gong while approaching the point where the street car contacted the door of the automobile; (3) with reference to the matter of keeping a lookout as the street car approached the point of contact with the automobile. The jury absolved the defendant under the doctrine of discovered peril, also of negligence in regard to the operation of the street car at a higher rate of speed than a person of ordinary prudence would have, under same or similar circumstances.

The jury found plaintiff guilty of contributory negligence as follows: (1) In failing to keep a proper lookout for the approach of the street car while she was standing close to the east track, waiting for her companion to alight from the car; (2) in permitting the door of the automobile to swing out, close...