J. S. Abercrombie Co. v. Delcomyn

• Decision Date: 07 February 1940
• Docket Number: No. 2292-7446.,2292-7446.
• Citation: 135 S.W.2d 978
• Parties: J. S. ABERCROMBIE CO. v. DELCOMYN.
• Court: Texas Supreme Court

135 S.W.2d 978

J. S. ABERCROMBIE CO. v. DELCOMYN.

No. 2292-7446.

Commission of Appeals of Texas, Section A.

February 7, 1940.

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

Personal injury action by Roy Delcomyn against J. S. Abercrombie Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 116 S.W.2d 1105, and defendant brings error.

Reversed and remanded.

Vinson, Elkins, Weems & Francis, Frank G. Dyer, Simon Frank, and Wm. S. Clarke, all of Houston, for plaintiff in error.

Allen, Helm & Jacobs and Wm. States Jacobs, Jr., all of Houston, for defendant in error.

HICKMAN, Commissioner.

In the trial court defendant in error, Roy Delcomyn, recovered judgment against plaintiff in error, J. S. Abercrombie Company, for damages on account of personal injuries sustained by him in a collision at a street intersection in the City of Houston, which judgment was affirmed by the Court of Civil Appeals. 116 S.W.2d 1105. For convenience Delcomyn will be called plaintiff, and J. S. Abercrombie Company, defendant.

Just prior to the collision a truck belonging to defendant was being driven west on Polk Avenue by one of its employees transporting two metal pipes, each 20 inches in diameter and about 38 or 40 feet in length. Above the rear wheels of the truck was a bolster upon which the pipes rested three or four feet from one end. About the same distance from the other end the pipes were supported by a trailer consisting of two wheels and an axle. There was no coupling between these wheels and the truck, except the pipes, the trailer being attached to these pipes by chains. Plaintiff was driving south on Caroline Street at night after the signal lights at the intersection had ceased operating. When he reached the intersection he slowed down his automobile, but did not bring it to a complete stop. According to his testimony he saw the truck, but did not see the pipes or the trailer wheels. After he slowed down and saw the truck pass he speeded up his car and drove it into the side of the pipes. The part of his car which struck the pipes was the windshield, the hood and radiator having gone under them.

In answer to special issues the jury found that defendant was negligent in failing to have a warning signal on the pipes visible from the side, and that such negligence was a proximate cause of the collision. Various issues as to the contributory negligence of the plaintiff were submitted, each of which was answered in his favor. On the question of the failure of the plaintiff to bring his car to a complete stop before entering the intersection, it was the view of the trial judge that by such failure plaintiff violated an ordinance of the city requiring that vehicles be brought to a full stop before entering that intersection, by reason of which, plaintiff was negligent as a matter of law. Accordingly there was submitted to the jury only the issue of whether such failure was a proximate cause of plaintiff's injuries. To that issue the jury answered "No." Plaintiff filed no exceptions to the charge, thereby acquiescing in the ruling that his acts constituted negligence per se.

Defendant takes the position that the court should have granted its request timely filed, for a peremptory instruction in its favor; basing its contention upon the ground that plaintiff's negligence in failing to stop was, as a matter of law, a proximate cause of his injuries. With this we cannot agree. The principle is well established in this jurisdiction that anticipation of injury is an element of proximate cause. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162. Other authorities are collated in 30 Tex.Jur. 699, sec. 47. An equally well-settled principle is that the same necessity exists for a proper application of the law of proximate cause in a case where the negligence consists in the violation of a statute or an ordinance as in an ordinary negligence case. Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W. 2d 401; Paris & G. N. Ry. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; Texas & N. O. Ry. Co. v. Harrington, Tex.Com. App., 235 S.W. 188.

Unless, therefore, it can be said, as a matter of law, that plaintiff should have anticipated injury as a result of his violation of this ordinance, the court properly refused to grant the motion for a peremptory instruction. The general description of the truck and trailer, as given above, supplies all the evidence necessary to make it appear that reasonable minds might differ on the question of whether a person of ordinary prudence, situated as was plaintiff, should have anticipated injury as a result of entering the intersection in question under the circumstances shown in this record. Jurors might reasonably conclude, as the jurors in the instant case must have concluded, that the situation created by the long pipes protruding from the rear of the truck, higher from the ground than the hood of plaintiff's car, with no light visible from the side, was dangerous and that a person of ordinary prudence might have failed to discover it, and,...