Harrison v. Southwest Coaches

• Decision Date: 05 December 1947
• Docket Number: No. 2610.,2610.
• Citation: 207 S.W.2d 159
• Parties: HARRISON v. SOUTHWEST COACHES, Inc.
• Court: Texas Court of Appeals

207 S.W.2d 159

HARRISON v. SOUTHWEST COACHES, Inc.

No. 2610.

Court of Civil Appeals of Texas. Eastland.

December 5, 1947.

Rehearing Denied December 19, 1947.

Appeal from District Court, Jones County; Owen Thomas, Judge.

Action by W. H. Harrison, for himself and as next friend of his minor son, Don Ray Harrison, against Southwest Coaches, Inc., for damages caused by injury to son while a passenger on defendant's motorbus. Judgment for the defendant, and plaintiff appeals.

Affirmed.

Letcher D. King, of Abilene, for appellant.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellee.

GRISSOM, Chief Justice.

W. H. Harrison, for himself and as next friend of his minor son, Don Ray Harrison, sued the Southwest Coaches, Inc., for damages caused by an injury to the minor while he was a passenger on the defendant's motor bus enroute from Dallas to Hamlin. Plaintiff's evidence tended to show that while the bus was going west it was being driven over the center stripe on the highway, to its left, when it met a truck going east that broke the rear view mirror on the bus and struck and broke Don Ray Harrison's elbow which was protruding from a bus window.

The jury refused to find that the bus driver did any of the acts which appellant charged he negligently did, but it found:

(12) That at the time of the accident, Don Ray Harrison was riding with part of his arm out of the bus window, or with his arm in the bus window;

(13) That this was negligence;

(15) And that such negligence of Don Harrison was a "proximate contributory cause" of his injury.

(16) That immediately prior to the accident, Don Harrison failed to keep a proper lookout;

(17) That this was negligence,

(18) Which was a "proximate contributory cause" of plaintiff's injury.

Judgment was rendered on the verdict for defendant and plaintiffs have appealed.

Appellant contends the judgment should be reversed because the court defined negligence as a want of ordinary care and failed to "apply the term `negligence' to a common carrier and" did not "properly charge the degree of care which the — bus company owed — Don Ray Harrison." Appellant says appellee owed Don Ray Harrison a high degree of care, such as would be used by a very cautious, prudent and competent person under similar circumstances. Appellant's contention as to the degree of care required of common carriers of passengers is correct. International & G. N. R. Co. v. Halloren, 53 Tex. 46; Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Dallas Ry. & Terminal Co. v. Travis, 125 Tex. 11, 13, 78 S.W.2d 941; Wichita Valley R. Co. v. Williams, 116 Tex. 253, 288 S.W. 425; Glazer v. Wheeler et al., Tex.Civ.App., 130 S.W.2d 353; San Antonio Public Service Co. v. Turbin, Tex.Civ.App., 153 S.W.2d 343; 8 Tex.Jur. 728. However, appellant contended himself with merely objecting because the court's definition of negligence was not applied to a common carrier and because the court did not properly charge the degree of care which appellee owed Don Harison. Texas R.C.P. 279 provides:

"Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment."

No definition or instruction was tendered by appellant. Appellee insists that appellant cannot be heard to complain because he did not tender a substantially correct definition or instruction. See Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312. See also Modica v. Howard, Tex.Civ.App., 161 S.W.2d 1093; Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 224, 177 S.W.2d 264, 265; Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ. App., 172 S.W.2d 991 (writ ref.); Dakan v. Humphreys, Tex.Civ.App., 190 S.W.2d 371, 375.

Our Supreme Court in Texas Employers Ins. Ass'n v. Mallard, 143 Tex. 77, 81, 182 S.W.2d 1000, held that R.C.P. 279, quoted above, was not applicable where a definition was submitted; that if a definition was submitted which was deemed defective that R.C.P. 274 was the applicable rule. However, we are of the opinion that the rule announced in Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S. W.2d 312, 314, is controlling on this point. There the court said that the appellant was not objecting to the definition given by the trial court, but was requesting it to "give additional instructions which the insurance carrier thought would be beneficial to it." Here appellant was not objecting to the court's definition of negligence. It was correct. It was applicable to Don Harrison and to issues thirteen and seventeen. It was the usual definition. Don Harrison, the passenger, was required to use ordinary care for his own safety. Appellee was required to exercise a high degree of care for the protection of its passengers. Dallas Ry. & Terminal Co. v. Travis, 125 Tex. 11, 78 S.W.2d 941, 942. As in the Sams case, supra, appellant was actually asking the trial court to give additional instructions which he thought would be helpful to him, that is to instruct the jury that the bus company owed its passenger a high degree of care. Dallas Ry. & Terminal Co. v. Travis, 125 Tex. 11, 15, 78 S.W.2d 941. Under the decision in the Sams case, appellant was required to present a substantially correct instruction as to the degree of care owing by the carrier to its passenger to entitle him to complain of the trial court's action on appeal. The definition of negligence being correct as applied to Don Harrison and his alleged contributory negligence, if appellant desired an instruction as to the degree of care required of carriers of passengers, he should have prepared and tendered it to the court. Traders & General Insurance Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391, 398. R.C.P. 279; Dallas Ry. & Terminal Co. v. Travis, 125 Tex. 11, 14, 78 S.W.2d 941; Texas Employers Insurance Ass'n v. Mallard, supra. In this connection, we again call attention to the fact that the jury found that appellee did not do any of the acts which appellant charged it with negligently doing. Therefore, the jury did not reach the question as to whether the acts charged against appellee were negligently done. Point one is overruled.

The second point is that the judgment should be reversed because the court failed to define "proximate contributory cause." Appellant objected to the failure to define said term as used in Special Issues fifteen and eighteen. Special Issue Fifteen inquired whether the negligence of Don Ray Harrison in riding with his arm protruding from the window was a "proximate contributory cause" of his injury. Special Issue Eighteen inquired whether Harrison's failure to keep a proper lookout was a "proximate contributory cause" of his injury. Being appellee's issues, appellant was not required to present to the court a substantially correct definition of a term used therein, but it was sufficient to merely object thereto and point out the defect therein. Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App., 172 S.W.2d 991 (writ ref.); Dakan v. Humphreys, supra. Proximate cause was correctly defined by the court. The term "proximate contributory cause" has no substantially different meaning. See Miller v. Panhandle & S. F. R. Co., Tex.Civ.App., 35 S.W.2d 194, 202, where the court said:

"`Contributing proximate cause,' is a new term which has lately been injected into the phraseology of the law of negligence, and should not have been defined. The expression is tautologous. It is difficult to conceive of a proximate cause of an injury which is not at the same time a contributing cause."

The phrase was used in issues submitted for appellee's benefit. We do not see how appellant could have been injured by the failure of the court to define it. In ...