Jackson v. City of Dallas

• Decision Date: 27 June 1969
• Docket Number: No. 17313,17313
• Citation: 443 S.W.2d 771
• Parties: Ella JACKSON, Individually, and Ethelene Johnson, Individually and as Next Friend of Willie Mae Johnson, a Minor, Appellants, v. The CITY OF DALLAS, a Municipal Corporation, and Dallas Transit System, Appellees. . Dallas
• Court: Texas Court of Appeals

Page 771

443 S.W.2d 771

Ella JACKSON, Individually, and Ethelene Johnson Individually and as Next Friend of Willie Mae Johnson, a Minor, Appellants, v. The CITY OF DALLAS, a Municipal Corporation, and Dallas Transit System, Appellees.

No. 17313.

Court of Civil Appeals of Texas Dallas.

June 27, 1969.

Rehearing Denied July 25, 1969.

Jay S. Fichtner, Berman & Fichtner, Dallas, for appellants.

James H. Holmes, III and Robert E. Burns, Burford Ryburn & Ford, Dallas, for appellees.

CLAUDE WILLIAMS, Justice.

Appeal from a take nothing judgment rendered Non obstante veredicto.

On December 18, 1965 M. C. Johnson was riding as a passenger on a bus owned and operated by the Dallas Transit System, a department of the City of Dallas, when he was shot and killed by Claudell Banks, another passenger. Ella Jackson, the widowed mother of the deceased, and Ethelene Johnson, the widow, individually, and as next friend of Willie Mae Johnson, the minor daughter of the deceased, brought this action against the City of Dallas and Dallas Transit System, and also Claudell Banks, seeking to recover damages pursuant to the provisions of the wrongful death statutes of the State of Texas (Articles 4671--4678, Vernon's Annotated Civil Statutes of Texas). It was alleged that Wilburn McDonald, the driver of the bus in question, acting within the course and scope of his employment for the transit system, was negligent in permitting Claudell Banks to enter the bus while intoxicated and carrying a gun and was also negligent in failing to eject Banks from the bus when he knew or should have known that Banks' presence endangered the safety of other passengers; that such negligence was a proximate cause of Johnson's death.

The case was tried to the court and a jury. The court's charge to the jury contained an instruction to the effect that as a carrier of passengers the transit system was under a duty to exercise such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by a very cautious, prudent and competent man under the same or similar circumstances, and that the term 'negligence', as used in the special issues in the charge, meant a failure, if any, to exercise a high degree of care. The court charged the jury that the term 'proximate cause' meant that cause which in its natural and continous sequence produces a result that would not have occurred but for such cause, and which result, or some like result, ought reasonably to have been anticipated or foreseen by a very competent, cautious and prudent person in the light of attending circumstances.

In response to the special issues submitted the jury found (1) that at the time he entered the bus Claudell Banks was intoxicated; (1--A) that Wilburn McDonald knew, or should have known, that Banks was intoxicated when he entered the bus; (2) that McDonald allowed Banks to board the bus knowing that Banks was intoxicated; (3) that such act and conduct was negligence; (4) that such negligence was a proximate cause of the 'occurrence in question'; (5) that at the time Banks entered the bus McDonald knew that Banks carried a gun; (6) that McDonald allowed Banks to board the bus knowing that Banks carried a gun; (7) that such conduct was negligence and (8) was the proximate cause of the 'occurrence in question'. The remaining issues (9 and 10) dealt with the amount of damages found by the jury .

The city and transit system filed their motion for judgment Non obstante veredicto in which it was contended that the court should set aside and disregard the jury findings of negligence and proximate cause because there was no evidence of probative force to support such findings. The trial court sustained this motion and rendered judgment denying plaintiffs any relief against the City of Dallas and Dallas Transit System. The court rendered judgment for plaintiffs against Claudell Banks who did not contest the action and who does not now appeal from the judgment.

Appellants have perfected their appeal and bring forward ten points of error. Points 1 and 10 relate to alleged procedural errors. Points 2--5, inclusive advance the contention that the trial court was in error in granting appellees' motion for judgment Non obstante veredicto and that the judgment should be reversed and rendered upon the verdict. By their points 6--9, inclusive, appellants seek to reverse and remand the trial court's judgment because of the refusal of the court to submit to the jury certain special issues requested by appellants relating to the alleged negligence of the bus driver in failing to take some action to protect the passengers prior to the shooting.

We first consider appellants' procedural points. They argue, in point 1, that the court should not have granted appellees' motion for judgment Non obstante veredicto because such motion was too general to meet the requirements of Rule 268, Vernon's Texas Rules of Civil Procedure. Rule 268, T.R.C.P., provides: 'A motion for directed verdict shall state the specific grounds therefor.' Rule 301, T.R.C.P., provides, inter alia, that 'upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, * * *.' Appellants point to the motion for instructed verdict filed by appellees wherein it is generally stated that 'there is no evidence of any negligence attributable to these defendants' and: 'If there be evidence of negligence attributable to these defendants, such evidence as a matter of law was not a proximate cause of the accident in question.' Accordingly, they contend that such motion is too general to direct the court's attention to the specific contention advanced. We do not agree with appellants and overrule point 1. It is not necessary to actually file a motion for instructed verdict as a prerequisite for the court considering and passing upon a motion for judgment Non obstante veredicto. Rule 301 merely provides that such judgment Non obstante veredicto may be rendered 'if a directed verdict would have been proper.' McDonald, Texas Civil Practice, Vol. 4, page 1413. Moreover, we have carefully examined the motion for judgment Non obstante veredicto filed by appellees and find that the same is specific and detailed in presenting the question of 'no evidence' as to the issues complained about. In fact, appellants do not challenge the sufficiency of the motion for judgment Non obstante veredicto itself and certainly there would be no basis for such challenge.

By their point 10 appellants charge that the court erred in failing to permit them to file their second trial amendment. After the conclusion of the evidence and while the charge of the court was being prepared appellants offered a second trial amendment which charged that the bus driver was negligent in leaving the bus and abandoning his passengers on the occasion in question and that such negligence was a proximate cause of the death of Johnson. We do not find reversible error reflected in this point. The trial court, by virtue of Rule 66, T.R.C.P., is vested with broad discretion in determining whether or not to grant leave to file a trial amendment. We find no evidence of abuse of discretion, especially as appellants made no motion to withdraw their announcement of ready following refusal to allow the amendment to be filed. Point 10 is overruled. Sinclair Houston Federal Credit Union v. Hendricks, 268 S.W.2d 290 (Tex.Civ.App., Galveston 1954); Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459 (Tex.Civ.App., Tyler 1966); and Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635 (Tex.Civ.App., Dallas 1967, writ ref'd n.r.e.).

Appellants' points 2 and 3 assail the trial court's action in granting appellees' motion for judgment Non obstante veredicto and in doing so setting aside the jury's answers to Special Issues Nos. 1--8, inclusive. These issues are basically: (1) Was the bus driver negligent in allowing Banks to enter the bus on the occasion in question knowing that he was intoxicated; if so, was such negligence a proximate cause of the shooting. And (2) did the bus driver know that Banks carried a gun when he entered the bus and, if so, was his act in permitting him to get on the bus with the gun negligence as well as a proximate cause of the shooting.

It is fundamental that in order for us to sustain the action of the trial court in granting the motion for judgment Non obstante veredicto we must determine that the record contains no evidence of probative force to sustain the jury's answers to the issues relating to negligence and proximate cause. It has been said that the term 'no evidence' does not mean literally no evidence at all. 'No evidence' comprehends those situations wherein by the application of established principles of law the evidence is deemed legally insufficient to establish an asserted proposition of fact. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Kirkpatrick v. Raggio, 319 S.W.2d 362 (Tex.Civ.App., Fort Worth 1958, writ ref'd n.r.e.); Hill v. W. E. Brittain, Inc., 405 S.W.2d 803 (Tex.Civ.App., Fort Worth 1966). A jury verdict may not legally be supported on surmise, speculation or suspicion. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). In our judicial review of the propriety of the trial court's action in sustaining the motion, all testimony must be considered in a light most favorable to appellants against whom the motion was granted, and every reasonable intendment deducible from the evidence is to be indulged in such parties' favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952). The question thus presented is one of law: Was the evidence adduced by the appellants legally sufficient to prove negligence on the part of appellees' bus driver which was a proximate cause of the shooting which resulted in Johnson's death?

To resolve this question of law requires a review of the relevant testimony,...