Houston Electric Co. v. Schmidt

• Decision Date: 26 October 1922
• Docket Number: (No. 687.)
• Citation: 244 S.W. 1110
• Parties: HOUSTON ELECTRIC CO. v. SCHMIDT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

244 S.W. 1110

HOUSTON ELECTRIC CO. v. SCHMIDT.^*

(No. 687.)

Court of Civil Appeals of Texas. Beaumont.

October 26, 1922.

Rehearing Denied November 15, 1922.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Action by Mary Schmidt against the Houston Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Fouts & Patterson, all of Houston, for appellant.

Ward & Ward, of Houston, for appellee.

O'QUINN, J.

On original submission of this cause, this court reversed and remanded same because of improper argument on the part of counsel for appellee, but the Supreme Court granted a writ of error, and held that the facts did not warrant the finding by this court that the argument was improper or hurtful, and reversed and remanded the case to this court for further consideration. 242 S. W. 1019. The other question, the admissibility of certain testimony, passed upon by this court admitting the testimony, was held correct.

The opinion of this court on original hearing, in which a statement of the nature and result of the suit is made, together with a brief statement of the material facts, reference to which is here made, will be found in 233 S. W. 637. The case was tried upon special issues, and the jury returned a verdict finding appellant guilty of negligence, and that said negligence was the proximate cause of appellee's injuries, and awarding her damages in the sum of $10,000.

By their verdict the jury found: (1) That appellant's street car was being operated, at the time of the collision, within the city limits of the city of Houston at a speed of more than 18 miles per hour, and that such speed was the proximate cause of the injury; (2) that the roadbed of the street railway company, where John Schmidt, father of appellee, was driving his automobile, was not in a reasonably safe condition for the use of persons driving vehicles upon and along said street where said roadbed was; (3) that it was negligent upon the part of appellant to permit its roadbed at such place to become in such condition, and that but for such negligence said John Schmidt could and would have driven of said track and avoided collision with the street car; (4) that the motorman operating said car saw the automobile in which appellee was riding on the track in front of said street car, and realized that a collision between said street car and said automobile would occur if the street car was not stopped or its speed slackened within a sufficient time to have, in the exercise of ordinary care, stopped said street car or slackened its speed and prevented the collision by the use of means at his command; (5) that it was negligence on the part of the motorman not to have stopped the street car or checked its speed, and that such negligence was the proximate cause of the collision; (6) that an ordinarily prudent person, under the circumstances of the case, would not have had an operation for hernia performed; (7) that appellee was entitled to damages in the sum of $10,000.

Appellant's first and second assignments of error complain that the jury was prejudiced against appellant, and determined to find substantial damages against it without regard to the evidence, for in that said jury found against appellant upon every issue submitted as to its negligence, and found that three distinct and separate grounds of negligence were each the proximate cause of the collision, though appellant contends these alleged acts of negligence were conflicting, and also because the jury found damages against appellant in a sum it alleges to be excessive.

In support of this appellant asserts that the finding that the street car was traveling at a rate of speed in excess of 18 miles per hour, and that this was the proximate cause of the collision, and that the motorman's failure to stop the street car when he realized appellee's peril was the proximate cause of the collision, and that the bad condition of the track was the proximate cause of the collision; that these findings are necessarily in conflict with each other, and hence the verdict cannot stand.

Under these assignments, appellant submits the proposition that, "where the findings of the jury on special issues are conflicting the verdict will be set aside, as it constitutes no basis for a finding."

We are not sure that the proposition finds support in the assignments. The assignments assert that "the answers of the jury, when considered together, establish beyond a reasonable doubt that the jury was prejudiced against the defendant and determined to find substantial damages against defendant and to hold defendant liable therefor, without regard to the evidence, particularly in this," and then sets out the matters complained of, as we understand, that go to show the prejudice. The proposition says nothing about prejudice, but asserts that, where the findings are in conflict, the verdict should be set aside. However, we are of the opinion that the matters complained of do not show that the jury was prejudiced, nor do we think the findings, if at all in conflict, are so much so as to destroy the verdict. The mere fact that the jury found appellant to be negligent in more than one way, and that each of the negligent acts were proximate causes of the injury, does not mean, necessarily, that such findings are antagonistic. We do not think the inconsistency that appellant complains of is shown. The assignments are overruled. Eads v. City of Marshall (Tex. Civ. App.) 29 S. W. 170; City of San Antonio v. Porter, 24 Tex. Civ. App. 444, 59 S. W. 924; Gonzales v. City of Galveston, 84 Tex. 7, 19 S. W. 284, 31 Am. St. Rep. 17; Electric Co. v. Speegle (Tex. Civ. App.) 60 S. W. 885.

Appellant's third assignment shows no error. The fact that at first the jury were not unanimous and disagreed as to the amount to be awarded to appellee as damages, and that they finally agreed by some raising their original amounts and others lowering theirs, finally agreeing upon the amount rendered, shows no prejudice nor an improper method of arriving at the verdict.

By its tenth assignment appellant insists that the court erred in submitting special issue No. 3 to the jury, and by its eleventh assignment that the court erred in refusing to set aside the jury's finding in answer to said special issue. Special issue No. 3 submitted the question of discovered peril, in answer to which the jury found that the motorman in charge of the street car did see the automobile in which appellee was riding on the track in front of the street car, and did realize that a collision between the street...