Horton v. Benson

• Citation: 266 S.W. 213
• Decision Date: 12 November 1924
• Docket Number: (No. 8527.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HORTON v. BENSON et al.
• Court: Court of Appeals of Texas

266 S.W. 213

HORTON v. BENSON et al.

(No. 8527.)^*

Court of Civil Appeals of Texas. Galveston.

November 12, 1924.

Rehearing Denied November 26, 1924.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Grover C. Benson, Sr., and others, against George F. Horton. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sewall Myer and Ball, Merrill & Ball, all of Houston, for appellant.

Fulbright, Crooker & Freeman and W. J. Walden, all of Houston (W. B. Bates, of Houston, of counsel), for appellees.

LANE, J.

This suit was brought by Grover C. Benson, Sr., and his wife, Mrs. Florence Benson, in their individual capacities, and also as next friends for their minor children, Jean Benson and Grover C. Benson, Jr., for the recovery of damages for personal injuries, as well as property damage, sustained as the result of the Ford automobile in which they were riding colliding at night with a truck belonging to appellant, Horton, while it was standing on the road between Dickinson and Galveston, in Galveston county, Tex. No effort was made to separate the causes of action, and the case was tried as a single suit before a jury. The plaintiffs alleged:

That between the hours of 7 and 8 o'clock p. m., on the 18th day of November, 1921, they were riding in a Ford automobile, owned and driven by Grover Benson, Sr., on the public highway en route from the town of Dickinson to the city of Galveston. That the plaintiffs, other than Grover Benson, Sr., were occupying seats in said automobile upon the invitation of said Benson. That at the time they left Dickinson it was dark, and they had to turn on the lights of the automobile, which was done. That such lights, as required by law in such cases, were kept burning from the time they left Dickinson until the occurence of the alleged accident. That said automobile was, before and at the time of the accident, being driven in a careful and lawful manner at about 12 or 15 miles per hour. That at the time and place of the collision they were about to meet and pass another car with bright headlights, coming in the opposite direction, and that plaintiff Grover C. Benson, Sr., slowed down the speed of his car and just as he was about to meet and pass the aforesaid automobile going in the opposite direction, he saw for the first time the motor truck of appellant standing in the public highway directly in front of him, and so close that it was impossible to stop his automobile before crashing into the rear end of said truck, breaking the windshield, and completely demolishing the Ford automobile, and throwing the occupants thereof from their seats with considerable force into the broken windshield and wreckage of said automobile, and thereby painfully and seriously injuring all of the plaintiffs. That the truck belonging to appellant was being operated by an employee in pursuit of the business of appellant, and was being so operated more than half an hour after sunset and at a time of day when it was dangerous to other parties using the public highway, without any lights of any kind upon the truck, either headlights or tail-lights, and that the said truck was headed in the same direction that plaintiffs were going. That the failure of appellant to have headlights or a tail-light on said truck after dark was the direct and proximate cause of the collision and accident, and the injuries resulting therefrom. (Italics ours.)

That the public highway upon which the truck was stopped was straight for several miles each way at the point where the collision occurred, and if there had been headlights or a tail-light burning, as required by said State Highway Law, the plaintiff Grover C. Benson, Sr., who was driving the Ford automobile, could and would have seen the said light in time to have avoided the collision. That the plaintiff Grover C. Benson, Sr., was driving his car with care at the time, and at a low rate of speed, having slowed down for the purpose of passing another automobile going in an opposite direction. That he did not see the truck standing in the road directly in front of him until he was so close that it was impossible for him to bring his car to a stop before colliding with the same. That if the tail-light on the car had been lighted he could and would have seen the same in plenty of time to have avoided the collision.

Plaintiff also pleaded the State Highway Law, requiring automobiles when in operation during the period of one-half hour after sunset to one-half hour before sunrise to carry lights therein named. Then followed allegations setting out the nature of the injuries suffered by the respective plaintiffs, and the damage to the automobile in which they were riding. It was then alleged all of said injuries and damages were the direct and proximate result of the negligence of the defendant in the following particulars:

"(a) That appellant's employee violated the Texas State Highway Law regulating motor vehicle traffic, by having said truck stopped on the right-hand side of the public highway after dark, without lights of any kind.

"(b) That appellant's employee was guilty of negligence in stopping his truck after dark on the public highway, without lights of any character.

"(c) That appellant's employee was guilty of obstructing the public highway by leaving his truck parked on the right-hand side of the public highway at night, without lights of any kind, and without placing a signal of any kind or doing anything to give warning to plaintiffs or other persons using the highway; or, if said employee did make an attempt of any kind to give warning to plaintiffs, then same was not sufficient to and did not attract the attention or give warning to plaintiffs that the truck was stopped at said point."

Defendant answered by general denial, and the following special pleas:

"(a) Special denial that the truck was being operated within the meaning of that term as used in the State Highway Statute at the time of the accident, but that said truck had run out of gas, and that the employee in charge thereof had parked the same on the right-hand side of the road as far from the road as the condition of the road would permit.

"(b) That the headlights on the truck were burning at the time of the accident, and that the said employee was endeavoring to light the tail-light.

"(c) That the failure to have lights on the truck was not the proximate cause of the injury, but that said collision was proximately caused by the act and conduct of some person who came along the highway from the direction of Galveston and passed the automobile in which plaintiffs were riding shortly before the accident, driving at a high and dangerous rate of speed, and with glaring headlights, as a result of which the plaintiff Grover C. Benson, Sr., became confused and blinded, and drove his automobile into the rear end of the truck, and that, except for the negligence of the person driving said automobile from the direction of Galveston and the consequent confusion and blindness of plaintiff Grover C. Benson, Sr., the accident would not have occurred.

"(d) That the plaintiff Grover C. Benson, Sr., was guilty of contributory negligence in the following particulars:

"(1) That he was driving said car at an excessive rate of speed, did not have proper control over his automobile, and was unable to stop the same after discovering the existence of the truck, and that if he had operated his automobile in a reasonably careful and prudent manner, and at a reasonable rate of speed, the accident would not have occurred.

"(2) That just before the accident happened, another car passed coming from the direction of Galveston at a high and dangerous rate of speed, and with glaring headlights burning; that said headlights blinded and confused the plaintiff Grover C. Benson, Sr., so that he did not discover the existence of appellant's truck alongside said road; that he was guilty of contributory negligence in failing to slow down his automobile or bring the same to a stop during the time his vision was obstructed by said glaring headlights, so as to render it impossible for him to see obstructions in the road ahead of him.

"(3) That plaintiffs Benson and wife were guilty of contributory negligence in riding in so crowded a condition, all of four of the plaintiffs being in the front seat, as to render it impossible for the driver of their car to stop his automobile before striking the truck, after discovering the same.

"(4) That after appellant's employee had stopped the truck, he discovered the approach of plaintiffs' automobile, and he thereupon left the truck and started toward the approaching automobile of plaintiffs, and shouted his warning; but that plaintiffs wholly failed to observe or heed the same, and continued to drive their automobile at a high and dangerous rate of speed until the collision occurred.

"(5) That plaintiffs were guilty of contributory negligence in failing to keep a proper lookout.

"(6) That plaintiffs were guilty of contributory negligence in failing to comply with the law requiring automobiles being operated at night to carry two lighted lamps showing white lights visible under normal atmospheric conditions at least 500 feet in the direction toward which such automobile was facing."

Plaintiffs filed their supplemental petition, in which they specially denied the acts of contributory negligence charged, and pleading that Mrs. Florence Benson and the two children were, at the time of the accident in question, the guests of Grover C. Benson, Sr., who was on his way to Galveston on a business mission, and that, if Grover C. Benson, Sr., was guilty of contributory negligence, which was denied, that the same could be in no wise imputed to his coplaintiffs, Mrs. Florence Benson, Jean Benson, and Grover C. Benson, Jr.

The trial court, in the first paragraph of the charge, told the jury selected to try the case, that the case would be submitted upon special...