Jackson-Strickland Transp. Co. v. Seyler

• Court: Texas Court of Appeals
• Writing for the Court: Brown
• Citation: Jackson-Strickland Transp. Co. v. Seyler, 123 S.W.2d 928 (Tex. App. 1938)
• Decision Date: 25 November 1938
• Docket Number: No. 13831.,13831.
• Petition History: writ dism'd by agr.
• Parties: JACKSON-STRICKLAND TRANSP. CO., Inc., v. SEYLER.

Page 928

123 S.W.2d 928

JACKSON-STRICKLAND TRANSP. CO., Inc., v. SEYLER.

No. 13831.

Court of Civil Appeals of Texas. Fort Worth.

November 25, 1938.

Rehearing Denied January 20, 1939.

Appeal from District Court, Denton County; Hon. B. W. Boyd, Judge.

Suit by Ben Seyler against the Jackson-Strickland Transportation Company, Inc., for injuries sustained by plaintiff and wife in collision with defendant's truck and for damages to automobile. From a judgment for plaintiff, defendant appeals.

Judgment reformed so as to show a recovery by appellee in the sum of $17,528.50 and, as so reformed, affirmed.

Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellant.

William R. Watkins, of Fort Worth, Fred H. Minor, of Denton, and Watkins & Mays and Ross B. Lea, all of Dallas, for appellee.

BROWN, Justice.

Appellee, Ben Seyler, and his wife, Agnes, were driving through the town of Sanger, Texas, on a State highway, going south, and their automobile collided with one of appellant's trucks, which was being operated by an agent of appellant, Jackson-Strickland Transportation Co., Inc., in the opposite direction. The collision was occasioned by the truck driver swerving his truck to the left to avoid striking a wagon that was proceeding in the same direction as the truck. The accident happened at night.

Mr. and Mrs. Seyler were seriously injured and their automobile was badly wrecked. Mrs. Seyler was pregnant and the severe injuries she suffered killed the baby and brought about a miscarriage.

At the time of the trial of the case, some six months after the accident, neither Mr. Seyler nor his wife had recovered from their injuries, and each had broken bones that had not united. The undisputed evidence discloses that both were incapacitated for a considerable period of time and that such incapacity will continue for some time. It also discloses that both will be compelled to have medical and, in all likelihood, surgical attention succeeding the trial.

Appellee, Seyler, sued for damages because of the personal injuries sustained by him and his wife, and for exemplary damages, and for the damage occasioned by the wrecking of his automobile.

The case was tried to a jury and one hundred and eight questions were submitted to the jury for determination.

The jury found, in substance, that the truck was being driven at a greater rate of speed than 20 miles per hour; that such rate of speed was a proximate cause of the collision; that the truck driver failed to keep a proper lookout; that such failure was negligence and a proximate cause of the collision; that the truck driver failed to give any signal as he approached the curve on the highway before the collision; but that such failure was not negligence; that the truck driver turned the truck to his left immediately before the collision and failed to sound his horn immediately prior to such turning, and that such failure to sound the horn was negligence, and a proximate cause of the collision; that the truck driver failed to have the truck under proper control immediately prior to the collision, that such failure was negligence and a proximate cause of the collision; that the truck driver operated the truck at a greater rate of speed than 20 miles per hour as he approached the city limits of Sanger, and that he failed to reduce the speed of the truck to 20 miles per hour as he drove into the city limits of Sanger, but that such failure to reduce the speed of the truck was not negligence; that the driver of the truck was not guilty of negligence in turning the truck to the left, immediately prior to the collision; that the truck driver did not fail to apply his brakes as he turned to the left; that the truck driver drove the truck onto his left hand side of the highway, at the time of the collision, and such act was negligence and a proximate cause of the collision; that Seyler and his wife were in a position of peril, immediately prior to the collision, but that the truck driver did not discover such fact in time so that by the exercise of ordinary care in the use of the means at hand, consistent with safety to himself and his truck, he could have avoided the collision; that the accident was not unavoidable. The jury found all issues of contributory negligence charged to Seyler and his wife favorably to the plaintiff, and found that the existence of the wagon at the time and place of the accident was not the sole proximate cause of the collision, and was not a new and independent cause thereof; that the failure of the driver of the wagon to give a visible or audible signal of the presence of the wagon was not the sole proximate cause of the collision, and was not a new and independent cause thereof, and such findings were likewise made with reference to the failure of the driver of the wagon to equip same with lights.

In submitting the measure of damages, the trial court gave seventeen distinct issues.

The first issue is as follows:

"What sum of money, if paid now in cash, do you find from a preponderance of the evidence will reasonably compensate the plaintiff Ben Seyler for injuries sustained by him as a direct and proximate result of the collision, taking into consideration exclusively physical pain and mental suffering prior to this date, if any? Answer giving amount in dollars and cents, if any.

"Answer: $2,750.00.

"In answering No. 92 you must exclude from your consideration all damages and mental suffering and grief he may have sustained by reason of the death of the baby, and you must not take into consideration his loss of the society and companionship of the baby."

The next issue required the jury to find whether or not Ben Seyler will suffer any physical or mental pain in the future, and the answer was "Yes," and this issue is followed by one inquiring of the amount of damages and contains all of the instructions and safeguards found in the quoted portion of the charge. The jury found $487.50.

The next issue is with reference to Mrs. Seyler, and is as follows:

"What sum of money, if paid now in cash, do you find from a preponderance of the evidence will reasonably compensate the plaintiff Ben Seyler for injuries sustained by Mrs. Agnes Seyler as a direct and proximate result of the collision, taking into consideration exclusively physical pain and mental suffering sustained by her prior to this date, if any, and you must exclude from your consideration all damages and physical pain and suffering and grief which Mrs. Agnes Seyler may have sustained by reason of the death of the baby, and you must not take into consideration her loss of the society and companionship of the baby? Answer giving amount in dollars and cents, if any.

"Answer: $10,000.00."

The next issue requires the jury to find whether or not Mrs. Seyler will suffer physical and mental pain in the future, and the jury answered "yes," and this issue is followed by one inquiring as to the amount of damages, and contains all of the instructions and safeguards found in the quoted portion of the charge. The jury found $750.

The next issue required the jury to find what sum of money will compensate Ben Seyler for his diminished capacity to labor and earn money prior to the date of the trial, and the jury found $1,000. The next issue required the jury to find whether or not Ben Seyler will suffer a diminished capacity to labor and earn money in the future, which the jury answered "Yes," and then follows the issue inquiring of the amount, and the jury found $1,500.

The next issue required the jury to find the sum covering the reasonable and necessary doctors', hospital, medical and nurses' bills already incurred by reason of injuries suffered by Mrs. Seyler, and the finding is $1,500. The next issue covers such bills incurred by reason of injuries sustained by Ben Seyler and the jury found $350.

The jury then found that similar expenses would be incurred in the future by reason of Mrs. Seyler's injuries, and the amount is set at $200; and that similar expenses would be incurred in the future by reason of Ben Seyler's injuries, and the amount is set at $500.

Then follow the two issues covering damage to the automobile, making a net recovery of $556 for such loss.

Under these findings, the trial court rendered judgment for the appellee, Ben Seyler, in the sum of $19,106, such plaintiff below having remitted the sum of $487.50, being the amount the jury assessed as damages for the future physical and mental pain that will be suffered by Ben Seyler.

The defendant below, Jackson-Strickland Transportation Co., Inc., has appealed and presents eleven assignments of error.

The first complains of the admission in evidence of a certain plat that was made by one Wilson, constable of the precinct in which the accident occurred, who lived in Sanger and who went to the scene of the accident just after it happened.

It appears that this witness made a diagram showing what he found and afterwards made some crude measurements and re-made, or made a second and more complete map, or diagram, and the trial court admitted such map in evidence after the witness had testified to what he found on the ground, from which he made the diagram.

While the witness was testifying to the facts and conditions found by him, immediately after the accident, and was using the map he had made in so testifying and counsel for appellee tendered the map in evidence, the counsel for appellant said: "The defendant has no objection to this witness detailing the facts as he knows them, but we do object to him going out there a week after the accident was over and drawing a plat, and by way of illustration he purports to show by this plat apparently where the truck was at the time of the accident. The witness testified he was not present and did not see that; it is hearsay, inflammatory and prejudicial."

Counsel for appellee then asked the witness: "Does that plat correctly reflect the position of the streets and the...