Holden v. Robertson & Mueller

• Decision Date: 02 April 1927
• Docket Number: (No. 11758.)
• Citation: 294 S.W. 667
• Parties: HOLDEN et ux. v. ROBERTSON & MUELLER.
• Court: Texas Court of Appeals

294 S.W. 667

HOLDEN et ux. v. ROBERTSON & MUELLER.

(No. 11758.)

Court of Civil Appeals of Texas. Fort Worth.

April 2, 1927.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by C. C. Holden and wife against Robertson & Mueller. Judgment for defendants, and plaintiffs appeal. Affirmed.

Houtchens & Clark, of Fort Worth, for appellants.

Burgess, Burgess, Chrestman & Brundidge, of Dallas, Charles T. Rowland, of Fort Worth, and L. E. Elliott, of Dallas, for appellees.

BUCK, J.

Plaintiffs below, C. C. Holden and wife, filed suit in the district court of Tarrant county against L. P. Robertson and F. P. Mueller, for damages for the death of their son, Clyde Holden. Plaintiffs alleged that their son received injuries of a minor nature from falling off the running board of a Dodge coupé on East Belknap street in the city of Fort Worth, on the 3d day of November, 1924; that the ambulance of the defendants was called to take him to the hospital; that, while the defendants were engaged in carrying Clyde Holden to the hospital in their ambulance, they negligently and carelessly caused the ambulance to be overturned at the intersection of Throckmorton and Seventh streets in the city of Fort Worth; and that from the overturning of said ambulance said Clyde Holden sustained injuries from which he died.

Defendant answered by demurrers, both special and general, a general denial, and specially pleaded, among other matters, that the said Clyde Holden received his fatal injuries from falling off the running board of the Dodge coupé, and that he was in a dying condition when he was placed in the ambulance. This was the principal contested issue in the trial court.

The cause was submitted to a jury on special issues, which, with their answers, are hereinafter set out: (1) That the driving of defendants' ambulance at whatever speed the jury believed it was being driven as it approached Throckmorton and Seventh streets on the occasion of the collision was negligence, and that such negligence was the proximate cause of the collision with a Ford car at the intersection of said streets. (2) That the driver of the ambulance was not using ordinary care to keep a lookout for crossing traffic at Seventh and Throckmorton streets, and that the failure to use such care was the proximate cause of the collision with the Ford car. (3) That the ambulance driver was not negligent in not taking Clyde Holden to the City-County Hospital, which was shown to be located at Fifth and Jones streets. (4) That the collision between the ambulance and the Ford car at Seventh and Throckmorton streets was not an unavoidable accident. (5) That Clyde Holden, independent of the happening at Seventh and Throckmorton streets, would not have recovered from the injuries sustained by him at 505 East Belknap street, sufficiently to have been of any pecuniary assistance to the plaintiffs. Upon this verdict the court entered judgment for the defendants, and the plaintiffs have appealed.

Opinion.

As before stated, the principal question at issue was as to whether Clyde Holden was fatally injured by falling off the running board of the Dodge coupé in front of 505 East Belknap street, and whether he was in a dying condition when placed in the ambulance.

The evidence showed that Tommy Smith was on that day driving a Dodge coupé, and went by the Riverside drug store, in the eastern part of Fort Worth and across the Trinity river, where he met Clyde Holden. The two young men then went to the Holden home, where Lois Holden, Alva Brown, then Alva Maben, Ella Kurz, and Alice Ward were. The six young people got in the car, two of the young ladies sitting in the laps of the other two, and Clyde riding inside of the car at first or standing outside on the left running board; the evidence upon this point being contradictory. Young Smith testified that Clyde rode inside the car until they got up on Belknap street, and just as they crossed the railroad tracks he got out on the running board. At least one of the girls testified that he was riding on the running board from the time they left the Holden home. At the time he fell off the running board, he was holding onto the visor of the car, which came loose, and he fell on the paved street. Smith testified that Clyde fell to the pavement on his hands and knees, and he stopped the car and went back to where he was; that he was not driving fast when Clyde fell off, between 8 and 10 miles an hour; that he asked Clyde if he was hurt, and he replied that he could not tell yet; then he and another man picked Clyde up and placed him on the lawn at 505 East Belknap street; that he was there about five minutes before the ambulance came; that, while Clyde was on the lawn, the witness got some water and come back and held Clyde's head, and he seemed to move practically his whole body, and that he was mumbling something, but he could not understand what was said after Clyde was carried up on the lawn; that, when the ambulance came, being driven by George Mahan, Clyde was placed in the ambulance, and his sister, Lois Holden, and Ella Kurz got inside of the ambulance where Clyde was on a stretcher or cot.

Smith further testified that he followed the ambulance west on Belknap street and then south on Throckmorton until the collision and the overturning of the ambulance at Seventh and Throckmorton; that he stayed about a block behind the ambulance, or he was about a half block at the beginning, and that the ambulance gained on him a little; that the ambulance was going more than 45 miles an hour; that he was driving 45 miles an hour, and the ambulance gained on him; that the ambulance was going down the center of the street; that, as the intersection of Seventh and Throckmorton streets was reached the ambulance hit a Ford sedan, coming from the west, and then turned facing the west curb and then towards the east curb, and ran into some iron pipes, originally placed on the corner there for hitching posts, and turned over. The Ford contained several people, and the ambulance struck the rear wheel and fender thereof and knocked it over against the light post on the southeast corner of the intersection. When he got down to the intersection, the ambulance was lying up on the curb of the southeast side of Throckmorton street, and he saw the driver of the ambulance get out, and he could not tell whether he was hurt or not; that Clyde seemed to be lifeless; that there was a difference in him then and when he left Belknap street; that he did not seem to breathe as freely as he did on Belknap street; that he did not seem to have as much life in him as he did before; that when he was at 505 Belknap street he moved his arms and legs and practically his whole body. On cross-examination, he testified that he was not sure Clyde was in the car when they left the Holden home or not, but that he got out of the car at some time before the accident on Belknap street and was standing on the running board; that at the time of the accident on Belknap street he did not see blood all over Clyde's face, though he saw some blood; that he saw a lady take Clyde's head in her lap while he was on the lawn and wipe off the blood from his face. This lady was a Mrs. Scott, whose testimony will be later given.

K. M. Howard, a police officer, testified that in the afternoon of November 30, 1924, he was at the corner of Sixth and Main streets, and that he ran up to Seventh and Throckmorton streets and saw the ambulance coming; that it was running about 50 miles an hour; that he saw the actual collision between the two cars; that a street car track runs east and west on Seventh street, and one north and south on Throckmorton street; that the Ford sedan had crossed over the street car track running north and south, and was coming east; at least the back wheels had crossed the east car line when it got hit.

Alva Brown, née Maben, testified that they left the Holden home about 2:30 in the afternoon and went first up to the Riverside drug store; that Clyde got out for some chewing gum; that at or near 505 East Belknap street Clyde, who was standing on the running board at the right-hand side of the car, fell off and hit on his feet and then fell on his knees and hands and head on the pavement; that they were driving slow at the time he fell off: that, when they got back to where Clyde had fallen, Tommy Smith asked him if he was hurt, but she did not hear Clyde say anything; that Tommy Smith and some man helped Clyde over onto the lawn of the house at 505 East Belknap street; that she did not see any evidence of injury about his face; his nose was bleeding, though she did not remember whether there was any indication of any bruise or injury to his nose; that, after the ambulance came, they put Clyde on a stretcher and Lois and Ella Kurz got in the ambulance with him, and she, Tommy, and Alice got into the car and followed the ambulance; that they drove fast; that the stretcher was fastened up against the left-hand side of the ambulance, and that Lois Holden and Ella Kurz sat on the right-hand side of the stretcher; that, at the time of the accident on Belknap street, Lois Holden cried out when Clyde was falling, and that she was scared, naturally, from that time until the ambulance left with him; that the witness was scared and uneasy about Clyde; that he was lying there on his back, breathing heavily, having great trouble getting his breath; that she could not say...