Jacobe v. Goings

• Decision Date: 08 March 1928
• Docket Number: (No. 1663.)
• Citation: Jacobe v. Goings, 3 S.W.2d 535 (Tex. App. 1928)
• Parties: JACOBE et al. v. GOINGS.
• Court: Texas Court of Appeals

3 S.W.2d 535

JACOBE et al. v. GOINGS.

(No. 1663.)

Court of Civil Appeals of Texas. Beaumont.

March 8, 1928.

Rehearing Denied March 14, 1928.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Mrs. Pearl Goings against R. L. Jacobe and another, as copartners. From a judgment for the plaintiff, defendants appeal. Judgment reformed, and, as reformed, affirmed.

Fouts, Amerman, Patterson & Moore, of Houston, for appellants.

Sidney Benbow and Hunt, Teagle & Moseley, all of Houston, for appellee.

WALKER, J.

This was a suit by appellee, Mrs. Pearl Goings, against appellants, Howard and R. L. Jacobe, as partners, for personal injuries suffered by her as the result of a collision of appellants' automobile with the automobile of Mr. J. W. Sutton, in which she was a passenger, and which was being driven by her sixteen year old son, George, at the time of the collision. The collision occurred on one of the public streets of Houston. It was admitted that appellee's injuries resulted from the collision of the car in which she was riding with appellants' automobile, which, at the time, was being driven by their servant, L. B. Jacobs. In answer to special issues, the jury found that L. B. Jacobs, at the time and place of the collision, was operating appellants' automobile at a greater rate of speed than was reasonable and proper, considering the state of the traffic on said street at said time, in view of the surrounding circumstances; that this was negligence and a proximate cause of appellee's injury; again they found that in driving and operating the automobile along and upon said public street, and near the crossing of Welsh avenue and the place in question, L. B. Jacobs failed to keep a proper lookout for other automobiles which might be coming on Van Buren street, as was the car in which appellee was riding; that this failure to keep a proper lookout was negligence, and a proximate cause of appellee's injuries. Again they found that, at the time and place in question, on entering the intersection of Welsh avenue and Van Buren street, L. B. Jacobs drove and operated appellants' car on the left-hand side of Van Buren street; that this act was negligence, and a proximate cause of appellee's injuries. Appellee's damages were fixed in the sum of $5,000, and judgment was entered in her favor for this sum. The case is properly before us on appeal.

Appellants make no attack on the verdict of the jury convicting them of negligence, but assign error in the refusal of certain requested issues and charges submitting to the jury the negligence of appellee's son in driving the car in which she was a passenger, all of which were refused, and such negligence was in no way submitted to the jury. It was the contention of appellants that the issue of negligence was raised against appellee's son, and that such negligence was imputed to her, by reason of the natural relation between them, and also on the ground that as an issue of fact they were engaged in a joint enterprise. These issues were raised by their answer, and were reflected in the special issues requested and refused. As summarizing the facts on these issues, we give in full the statement from the briefs of both parties.

From appellants' brief:

"Appellee testified:

"I am the plaintiff in this case. On or about the 27th of January, of 1927, I was in an automobile accident in the city of Houston. I was riding in a Buick car. My son George was driving it. I had this accident on Welch street. Jacobe Brothers' car struck us. It struck us on Van Buren; we were on Welsh. We were going to town. My son George was driving the car. He is sixteen years of age. The car in which we were riding belonged to Mr. J. W. Sutton. With reference to how it is we were riding in the car of Mr. Sutton, he had control of George, my son, and he was staying there as one of the family. With reference to how I happened to be in the car and where I was going, I was going to work for Mrs. Geisel, she lives at 1024 La Branch Street. I got in this car at the house where I live. * * * With reference to which side of the car did it come from, my right side or the left. I was sitting on the right-hand side of the car."

"The boy was taking me to work; that was the purpose of the trip, going to work. After he took me to work, he was going back to Mr. Sutton's. No one else was with us in the car. With reference to your question, that is the reason I got the car from Mr. Sutton to go to work; he had control of the car, and had control of George; he told George to take me to work."

"With reference to how it is we were riding in the car of Mr. Sutton; he had control of George, my son, and he was staying there as one of the family. With reference to how I happened to be in the car, and where I was going, I was going to work for Mrs. Geisel, she lives at 1024 La Branch street. I got in this car at the house where I live."

"I do not know much about operating automobiles; I have run them some. At the time of this accident my son had not driven that car in any manner to attract my attention as to a high rate of speed. Just prior to the collision, from the time I got in the car he had been operating it at about 15 miles per hour, I guess. There had been nothing done by him in handling the car to make me uneasy or put me on guard of any danger from the operation of the car; he drove a car over two years, and did not have an accident. Mr. Sutton told him he could take the car to take me to work; I did not have control of it. He did not have anything to do at this lady's house; he was taking me to work. That is the reason I went."

From appellee's brief:

"J. W. Sutton was the owner of a Buick car. Plaintiff's son had been driving Sutton's car for about two months. The car in which plaintiff was riding belonged to Sutton. Plaintiff's son was staying with Sutton as one of the family. Mrs. Goings got in the car at the place where she lived to go to work for a Mrs. Geisel.

"`Mr. Sutton told him he could take the car to take me to work, I did not have control of it.'

"Mrs. Goings testified:

"`The boy was taking me to work. That was the purpose of the trip, going to work. After he took me to work, he was going back to Mr. Sutton's. No one else was with us in the car. With reference to your question, that is the reason I got the car from Mr. Sutton, to go to work. He had control of the car, and had control of George; he told George to take me to work.'"

"Jacobs, witness for defendant, testified:

"`I first saw this car when I was practically in the intersection of the street on the north side.

"`With reference to how fast the car being driven by Goings was going with reference to speed, I could not tell; he was going over 20. I could not tell exactly, but he was going faster than the law allows; I know he was going at least 30 miles per hour, was my best knowledge. I did not get to observe him any length of time. That is my best judgment.

"`There was just a few seconds time between the squeak and the collision, I would say two seconds. I had time to turn my head, and then he hit. I did not see him until I heard the squeak. I did not decide he was going 30 miles an hour. I said about that. With reference to me not saying he was going 20, I don't know exactly. I did not see him until I heard the squeak. The collision was almost instant. I did not have time to observe or estimate his speed. I could not tell how fast he was going.'"

Appellee says there is no other evidence in the record on the issue of speed; no evidence on the failure of her son to keep a proper lookout; no evidence that he failed to diminish his speed when approaching the intersection; and no evidence that he failed to apply his brakes.

On the statement as made, which is all the statement made by both parties, we think it clear that the issue of negligence was not raised against young Goings. While Jacobs said that the boy was driving 20 or 30 miles an hour, his evidence shows that this statement was the merest conjecture. He admitted that he did not see him prior to the collision. He said:

"I heard the squeak. The collision was almost instant. I did not have time to observe or estimate his speed. I could not tell how fast he was going."

On this construction of the evidence appellants' charges and issues submitting the negligence of young Goings were properly refused.

But, if we have incorrectly construed the evidence, and if, in fact, an inference of negligence could have been drawn against young Goings, then the refusal of the charges was not error. Asserting that George Goings was a minor, his mother was a widow, and he was guilty of negligence, appellants say...