J. E. Stevens Funeral Home v. Busby
| Decision Date | 13 May 1960 |
| Docket Number | No. 3527,3527 |
| Citation | 336 S.W.2d 812 |
| Parties | J. E. STEVENS FUNERAL HOME, Appellant, v. Carl J. BUSBY et al., Appellees. |
| Court | Texas Court of Appeals |
Joe B. Dibrell, Jr., Coleman, for appellant.
J. Robert Harris, Coleman, for appellee.
J. E. Stevens Funeral Home filed suit against Carl J. Busby and Lee Etta Busby for damages as a result of an ambulance-automobile collision. Busbys filed a general denial, alleged several acts of contributory negligence and filed a cross action. The jury convicted the defendant, Lee Etta Busby, of several acts of negligence which they found to be a proximate cause of the collision. The jury also convicted the plaintiff of negligence in failing to turn on the siren immediately prior to the collision and also found that said negligence was a proximate cause of the collision. Based on this verdict, judgment was entered that neither party recover.
The parties will be referred to as they were in the trial court. The plaintiff has appealed from such judgment, contending the court erred in overruling his motion for judgment non obstante veredicto and rendering judgment that plaintiff take nothing. If there is any evidence in this record of probative force sustaining the jury's answers finding the plaintiff guilty of negligence which was a proximate cause of the collision, the judgment must be affirmed.
Both the vehicles were traveling north on Neches Street in Coleman, Texas, about eight o'clock p. m. The ambulance was on an emergency call and had turned on its flashing red light when it was about five blocks south of the point of collision. The plaintiff's position seems to be since he has convicted the defendant of negligence and proximate cause he is entitled to recover because the jury's findings that he was guilty of negligence is a nullity and of no force or effect because there was no duty resting upon him to sound his siren immediately prior to the collision. With this contention, we cannot agree.
The defendants properly raised said issues of contributory negligence and proximate cause in their pleadings and sufficient evidence was introduced to warrant the submission of said issues to the jury. Plaintiff's contention is that under the law and the conclusively established facts he had no duty to turn on his siren. It may be stated as an elementary principle of the law of negligence that actionable negligence can be based only upon a breach of duty owing by the person charged with negligence to the injured par...
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