Hawkins v. Houston Transit Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: MONTEITH
• Citation: Hawkins v. Houston Transit Co., 227 S.W.2d 604 (Tex. Ct. App. 1950)
• Decision Date: 23 February 1950
• Docket Number: No. 12154,12154
• Parties: HAWKINS et al. v. HOUSTON TRANSIT CO. et al.

Page 604

227 S.W.2d 604

HAWKINS et al. v. HOUSTON TRANSIT CO. et al.

No. 12154.

Court of Civil Appeals of Texas, Galveston.

Feb. 23, 1950.

Rehearing Denied March 16, 1950.

Ernest S. Fellbaum, Franklin, Kelly & Graham and Roy L. Merrill all of Houston, for appellants.

Wm. R. Brown and C. Brien Dillon, of Houston, Baker, Botts, Andrews & Parish, of Houston of counsel, for appellees.

MONTEITH, Chief Justice.

This action was brought by appellants, Millie Hawkins, the surviving widow of Thornton Hawkins, deceased, and their four children, for the recovery of damages alleged to have been sustained by them as the result of the negligent operation of a bus owned by appellee, Houston Transit Company, and being driven by appellee, Raymond E. McDaniel, which resulted in the death of Thornton Hawkins.

Appellees answered by defensive pleas and by an allegation that the injury which caused Thornton Hawkins' death was the result of his own negligence.

In answer to special issues submitted, the jury found, in substance, that appellees were not negligent in the operation of the bus and that the deceased was negligent in failing to keep a lookout for vehicular traffic in crossing Walker Avenue; in attempting to cross the street at the point where he was struck and in failing to stop before attempting to cross the street in the path of the approaching bus; and that such acts of negligence were the proximate causes of his being struck by the bus.

Based on the verdict of the jury, judgment was rendered that appellants take nothing by their suit.

Appellants rely for reversal on two points of assigned error. Under their first point they contend that the trial court erred in refusing to submit their seven requested special issues covering the elements of discovered peril, and under their second point they contend that the court erred in failing to submit to the jury issues containing the elements of discovered peril in proper form if the issues submitted by them did not properly and fully cover such elements.

This suit arose out of an accident which occurred on December 8, 1947, at about 9:25 P. M., near the intersection of Smith Street and Walker Avenue in the City of Houston. The streets were dry and there were no traffic lights or signs at the intersection. Appellee Raymond E. McDaniel, the driver of the bus, testified that he was traveling west on Walker Avenue at the rate of about 23 miles per hour when he approached Smith Street and that he 'let up on his gas to look for traffic' as he entered the intersection of Smith and Walker Streets. He testified that as soon as he got his foot back on the gas he saw Thornton Hawkins walking across the street about five feet in front of his bus and that he immediately turned the bus as hard as he could to the left and slammed on his brakes to keep from striking him.

A witness, Walter Kloesel, testified that he was standing near the front of the bus at the time the accident occurred; that the bus was full and that passengers were standing in the aisles. He testified that he saw Hawkins about ten feet in front of the bus when it entered the intersection and that at that time the driver of the bus applied the brakes and started swerving to the left.

Four women passengers on the bus testified that they saw Hawkins from one to six feet before he was struck by the bus. Each of the witnesses testified that the bus operator applied the brakes and swerved to the left as soon as they saw Hawkins.

The sole question for determination in the appeal is whether there is evidence in the record to establish the fact that the driver of the bus actually discovered the perilous position of the deceased in time to have avoided striking him, by the use of all the means at his command, consistent with his own safety and that of his bus and passengers.

It is the established law of this State that "The doctrine of discovered peril involves three elements, viz.: (1) The exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defend...