Haynes v. Martinez

• Decision Date: 15 June 1953
• Docket Number: No. 6313,6313
• Citation: 260 S.W.2d 369
• Parties: HAYNES et al. v. MARTINEZ.
• Court: Texas Court of Appeals

Page 369

260 S.W.2d 369

HAYNES et al. v. MARTINEZ.

No. 6313.

Court of Civil Appeals of Texas, Amarillo.

June 15, 1953.

Rehearing Denied Aug. 31, 1953.

Crenshaw, Dupree & Milam, Lubbock (Max Addison, Lubbock, of counsel), for appellants.

Bob Huff, Lubbock, for appellee.

NORTHCUTT, Justice.

Appellee, Ernesto Martinez, sued appellants, C. Sumner Haynes and George W. Soash, d/b/a Haynes-Soash Company, to recover alleged damages in the sum of $20,900 for the death of his three-year-old son, Louis Martinez.

Appellee alleged N. A. Hefner, agent, servant, and employee of appellants, while in the course and scope of his employment for said appellants, operated appellants' truck in such a negligent manner as to strike appellee's son, Louis Martinez, thereby causing the death of his said son. Appellee alleged two acts of negligence. One was the failure on the part of N. A. Hefner to keep a proper lookout and the other was that N. A. Hefner was driving the truck at an excessive rate of speed under the light of attending circumstances. Appellant answered denying such acts of negligence and plead that the plaintiff was himself guilty of negligence because of failure to exercise ordinary care to control said child and keep him out of the highway. The appellant also plead that neither they nor their agent were guilty of negligent conduct and that, if appellee was free from contributory negligence, that then and in that event the said accident was an unavoidable accident for which appellants could not be held liable.

The case was tried to a jury upon twelve special issues. The jury found that appellants' agent, N. A. Hefner, was operating the truck at an excessive speed in the light of attending circumstances, that the same was negligence and was a proximate cause of the death of Louis Martinez. The jury also found that N. A. Hefner failed to keep a proper lookout, that the same was negligence and was a proximate cause of the death of Louis Martinez. The jury found that N. A. Hefner was an agent and employee of appellants at the time of the accident, that he was working within the scope of his employment and that $12,875 would reasonably compensate appellee for the death of his son.

The jury, in answering special issue 10, found appellee did not fail to exercise proper care to keep Louis Martinez out of the paved highway. This accounts for the first ten issues submitted, but 11 and 12 are not answered because of the negative answer to issue 10.

Appellants objected to the charge of the court and requested the court to give their special requested issues. Appellants requested the court to inquire of the jury if the accident in question was an unavoidable accident but the court refused to submit this issue to the jury. The court also refused to give the requested issue as to whether Louis Martinez ran upon the highway and into and against appellants' truck, and also as to whether the same constituted a new, independent and intervening cause. Judgment was granted to appellee for $12,875 for personal injuries and death of his son, Louis Martinez, and for $487 for doctor bills, hospital bills, surgical fees and funeral bills. Appellants presented their motion for a new trial but the same was overruled and hence this appeal.

Appellants present thirteen points of error. Points 1 and 2, dealing with the question of unavoidable accident, have been presented together by the appellants. The appellants properly raised in the trial court the question of unavoidable accident and requested the trial court to submit that issue to the jury but the trial court denied such request. In determining whether the court erred in refusing to present to the jury the question of unavoidable accident, the sole question to be determined is whether there was sufficient evidence in the record to sustain such a finding. If the question could be answered in the affirmative, according to the testimony, then it follows that the trial court was in error in refusing to submit the issue. As stated by the Commission of Appeals in the case of Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 777, 779,

'It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.'

N. A. Hefner, driver of the truck in question, testified that he saw the appellee's children playing on the right-hand side of the highway, that as he approached where the children were playing he slowed the truck to about 30 miles per hour and pulled the truck over to the left to be sure not to harm the children but that, just prior to the accident, he saw the deceased about even with the cab of the truck and abourt six feet from the truck and at that time the deceased was running into the truck and the witness pulled the truck as far to the right as he could to avert hitting the child. This was upon a country road outside of the city of Lubbock and upon what is commonly known as the Old Plainview Road.

We believe, from all the evidence in this case, a jury could have found this would have been an unavoidable accident and that there was no negligence on the part of appellants, if that issue had been submitted to the jury. As stated by the Commission of Appeals in the case of Dixie Motor Coach Corporation v. Galvan, 126 Tex. 109, 86 S.W.2d 633, 634,

'Plaintiff in error had a right to have this affirmative defense submitted to the jury, regardless of the answers which the jury might make to other issues. In numerous cases it has been held that the question of the right of a defendant to have an affirmative defense submitted must not be determined from the viewpoint of conditions as they appear after the verdict is returned, but from the viewpoint of what the jury might have found if the issue had been submitted to them. Montrief & Montrief v. Bragg (Tex.Com.App.) 2 S.W.2d 276; Thurman v. Chandler (125 Tex.Com.App. 34) 81 S.W.2d 489; Greer v....