Hicks v. Brown, 5012.
| Citation | 128 S.W.2d 884 |
| Decision Date | 01 May 1939 |
| Docket Number | No. 5012.,5012. |
| Parties | HICKS et al. v. BROWN et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Action by Edna Brown and others against Emma Hicks, doing business under the trade-name of Yellow Cab Company, and the Hammond Taxi and Baggage Company, a corporation, for injuries sustained in an intersectional collision between two taxicabs, while riding as a passenger in a taxicab of the first-named defendant. From a judgment for the plaintiff, defendants appeal.
Affirmed.
Underwood, Johnson, Dooley & Wilson and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellants.
L. B. Godwin and Works & Bassett, all of Amarillo, for appellees.
This is an action for damages filed by appellee, Edna Brown, a colored woman, against appellants, Emma Hicks, doing business under the trade name of Yellow Cab Company, and Hammond Taxi & Baggage Company, a private corporation, both of whom operate taxi cabs in the city of Amarillo. Appellee alleged that on the 8th of November, 1937, at about three o'clock A. M. she was a passenger in the Yellow taxi cab, traveling south on Harrison Street in Amarillo and that, as the cab reached the intersection of Third Avenue which crosses Harrison Street, one of the cabs of appellant, Hammond Taxi & Baggage Company, approached from the east and a collision between the two cabs ensued in which she received serious personal injuries.
The case was submitted to a jury upon special issues, and upon their findings of negligence on the part of the drivers of both taxi cabs, the court entered judgment in favor of appellee in the sum of $1000, making provision for contribution of each of appellants in the event the other was required to pay more than one-half of the judgment.
Motions for a new trial filed by appellants being overruled, they gave notice of appeal, which was duly perfected, and the case is now before us for review.
The appellant, Hammond Taxi & Baggage Company, will be designated as the Hammond Taxi Company, and appellant, Emma Hicks, will be designated as the Yellow Cab Company.
Under appropriate assignments of error and propositions of law the Hammond Taxi Company contends, substantially, first, that the evidence was not sufficient to warrant a judgment against it. Secondly, assigns error in the form of special issues submitting the issue of sole proximate cause. Thirdly, error in submitting the question of unavoidable accident. Fourthly, in giving undue emphasis in the charge to the rate of speed at which its cab was being driven. Fifthly, in refusal of the court to give definitions of the term "proper lookout" and "reasonably safe control." Sixthly, error in admitting alleged hearsay testimony and, seventhly, error in refusing, upon motion, to strike excerpts from a scientific treatise utilized in the cross examination of a professional witness.
Some of the complaints made by the Yellow Cab Company are the same as some of those made by the Hammond Taxi Company and, in addition thereto, it complains, 1st, of the refusal of the court to submit special issues requested by it relative to certain acts of the driver of the Hammond taxi; 2nd, of the submission of special issues concerning the rate of speed at which its own cab was being driven; 3rd, of the action of the court in limiting the question of reasonably safe control of the Hammond cab to the period immediately before and at the time it entered the intersection and, 4th, duplication and confusion in the charge of the definition of proximate cause.
The first contention made by the Hammond Taxi Company is not well taken. We do not deem it necessary to enter into an extended analysis of the testimony but, in our judgment, there was ample testimony to warrant the court in submitting the case to the jury. It is shown by the evidence that the Hammond taxi cab was proceeding west on Third Avenue. The driver admitted he was traveling at least twenty-five miles an hour. The driver of the Yellow cab testified the Hammond cab was traveling at about thirty-five miles per hour. It was shown that the lawful rate of speed on the street where the collision occurred was twenty miles per hour. The driver of the Hammond cab testified he did not see the Yellow cab until he was entering the intersection only a few feet from where the collision occurred. According to his own testimony the driver of the Hammond taxi was guilty of negligence per se in driving at a rate of speed greater than was allowed by law. The fact that he did not see the Yellow cab until he entered the intersection, together with other evidence showing that after passing the corner of the buildings on Third Avenue, Harrison Street was open to view some distance north, plainly raised the question of whether or not he was maintaining a proper lookout at the time.
This testimony alone was sufficient to require the court to submit to the jury questions of negligence and proximate cause in relation to the manner in which the driver of the Hammond cab operated his car upon the occasion in question. There were other circumstances which also warranted the court in submitting the matter to the jury and, being of the opinion that no merit is shown in this contention, the first, second and third propositions of the Hammond Taxi Company will be overruled.
The second contention made by the Hammond Taxi Company is presented under its fourth proposition of law. It assigns error of the court in the submission of special issue No. 6 upon the question of sole proximate cause, contending that the court improperly placed the burden of proof upon it to show that the negligence of the Yellow cab was the sole proximate cause of the collision and appellee's injuries. Special issue No. 6 was as follows: "Do you find from the preponderance of the evidence that any act or acts or conduct upon the part of Joe New found by you in answering issues Nos. 1 to 5, inclusive, was the sole, proximate cause of the injury, if any, to the plaintiff?" Joe New was the driver of the Yellow cab and the special issue was answered in the negative. The contention here is that the question of whether or not the manner in which the Yellow cab was being operated and the acts and conduct of Joe New, its driver, constituted the sole proximate cause of appellee's injuries and that it was an element that had to be eliminated by appellee before she would be entitled to recover of the Hammond Taxi Company. It is argued, therefore, that the duty resting upon appellee to establish that the acts and conduct of the driver of the Yellow cab were not the sole proximate cause of the collision and resulting injury, the court should have submitted special issue No. 6 relating thereto in the negative so as to place the burden of proof upon appellee, the plaintiff. The Hammond Taxi Company, by this contention, takes the position that the question of sole proximate cause partakes of the same nature as the question of unavoidable accident and is one which constitutes an element of defense that can be established by proof under a general denial. If there is any material substance in the contention so frequently made in the trial of such controversies that similar special issues should be so framed as carefully to place the burden of proof upon the plaintiff even though it involves the confusing form of what is sometimes termed a double negative, it would not apply in this case because of the manner in which the issue was injected into the case. The Hammond Taxi Company pleaded the acts and conduct of the driver of the Yellow cab in (a) failing to come to a stop at the stop sign located at the intersection of the two streets; (b) failing to yield to the traffic on west Third avenue; (c) failing to keep a proper lookout, and (d) in entering upon the intersection at a dangerous rate of speed under the circumstances. It pleaded further that, in selecting the Yellow cab as her means of conveyance and selecting her point of destination with which she alone was concerned, appellee acquired the privilege of directing the driver of the cab and that the cab, to all intents and purposes, was subject to her control and management. It alleged, further, that appellee knew the conditions existing at the intersection, the presence of the stop sign and the buildings located at the corners and that the negligence of the driver of the Yellow cab in the various acts of conduct were, therefore, imputable to her. It alleged that each of such acts, singly and collectively, constituted the sole or contributing proximate cause of the collision and injuries which resulted to her and that they constituted contributory negligence on her part.
It is always necessary for a defendant to plead and establish by proof acts and conduct on the part of plaintiff upon which the defendant relies to establish contributory negligence and thereby defend against the negligence charged against him. Galveston, Harrisburg & S. A. Ry. Co. v. Easton, Tex.Civ.App., 257 S.W. 924. Contributory negligence cannot be urged as a defense in the absence of allegations and where it is alleged and an issue is made upon it by the evidence, it is always necessary for the court to submit special issues thereon. Appellant, Hammond Taxi Company, having alleged the acts and conduct of the driver of the Yellow cab to be negligence that was imputable to the plaintiff and therefore constituted contributory negligence which it alleged was the sole proximate cause of the collision and injury to plaintiff, it became the duty of the court to submit issues thereon in an affirmative manner, as was done, in order to determine appellant's affirmative contention in that respect. The form of special issues depend in a very large degree upon the nature of the pleadings and the testimony introduced. It is held in many cases...
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