Horton v. Benson

• Decision Date: 10 December 1925
• Docket Number: (No. 566-4313.)
• Citation: 277 S.W. 1050
• Parties: HORTON v. BENSON et al.
• Court: Texas Supreme Court

Page 1050

277 S.W. 1050

HORTON v. BENSON et al.

(No. 566-4313.)

Commission of Appeals of Texas, Section B.

December 10, 1925.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Grover C. Benson, Sr., and others against George F. Horton. Judgment for plaintiff was affirmed by the Court of Civil Appeals (266 S. W. 213), and defendant brings error. Affirmed.

Sewall Myer and Ball & Merrill, all of Houston, for plaintiff in error.

W. J. Walden and Fulbright, Crooker & Freeman, all of Houston, for defendants in error.

SPEER, J.

This cause is before us upon writ of error granted to the judgment of the Court of Civil Appeals affirming the judgment of the trial court for plaintiffs in a personal injury suit brought by defendants in error against plaintiff in error. 266 S. W. 213. The first and second assignments of error present the question of burden of proof as to the issue of plaintiff's contributory negligence in running into a truck standing on the right-hand side of the road at night where there was nothing to obstruct the view, claiming that under plaintiffs' pleadings and evidence the burden should have been placed upon plaintiffs to free themselves of the imputation of negligence. This matter was correctly decided by the Court of Civil Appeals. There was nothing in the plaintiffs' pleadings or in the evidence to raise a suspicion that plaintiffs were negligent in turning suddenly to the right in the road at the time of the collision. In short, as indicated by the pleadings and the plaintiffs' evidence, the driver of plaintiffs' car could have done nothing else under the circumstances. According to plaintiffs' pleadings and evidence, their car was proceeding at a reasonable rate in a proper part of the road, and upon meeting a lighted car turned seasonably to the right in order to pass it. This certainly was not prima facie negligence, but would appear to be a proper thing to do. Nor was the charge placing the burden of proof upon the defendant calculated at all to mislead the jury with respect to its duty to consider all the testimony in the case bearing upon that issue. The trial court expressly instructed them they should do this very thing.

Neither was there any error in the court's failing to define "negligence" in immediate connection with special issue No. 5 submitting whether or not the defendants' driver in charge was guilty of negligence in failing to have any tail light burning at the time of the injury complained of by plaintiffs. In the preliminary part of the charge the court correctly defined negligence "as that term is used in this charge," and it was of course entirely unnecessary to repeat that definition in connection with individual issues.

The writ was granted in this case upon the fourth assignment of error, which is as follows:

"The Court of Civil Appeals erred in overruling and not sustaining appellant's twenty-seventh, twenty-eighth, thirty-sixth, thirty-ninth, and fortieth assignments of error, and in thereby holding and decreeing that it is not error for the trial court in submitting the issue of contributory negligence of the plaintiffs in failing to heed a warning given by the employee of the defendant to charge the jury in effect that, in order for plaintiffs or either of them to have been guilty of such contributory negligence in failing to heed said warning, they must have seen or heard the warning given, if any, and in refusing to charge the...