James A. Dick Co. v. Yanez

• Decision Date: 27 October 1932
• Docket Number: No. 2722.,2722.
• Citation: 55 S.W.2d 600
• Parties: JAMES A. DICK CO. v. YANEZ et al.
• Court: Texas Court of Appeals

55 S.W.2d 600

JAMES A. DICK CO. v. YANEZ et al.

No. 2722.

Court of Civil Appeals of Texas. El Paso

October 27, 1932.

Appellant's Motion for Rehearing Granted December 1, 1932.

Appellees' Motion for Rehearing Denied December 22, 1932.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by Esequio Yanez and others against the James A. Dick Company and another. Judgment against named defendant, and it appeals.

Reversed and remanded.

J. F. Hulse and Turney, Burges, Culwell & Pollard, all of El Paso, for appellant.

H. D. Stringer, R. A. D. Morton, S. J. Isaacks, and Isaacks & Lattner, all of El Paso, for appellees.

PELPHREY, C. J.

On or about the 30th day of June, 1930, a truck belonging to the Five Points Transfer Company and being operated by Guadalupe Moreno, was going east on Myrtle avenue in the city of El Paso, Texas, and a truck belonging to appellant, being operated by Jesus Peres, was going in a southerly direction on Virginia street. Appellee Yanez, an employee of Stone & Webster, was riding on the rear portion of the Five Points Transfer Company truck.

Upon reaching the intersection of the above streets, the truck of the transfer company was turned suddenly to the right, turned over, and Yanez was injured.

Yanez filed suit against both appellant and the transfer company, alleging negligence on the part of appellant's driver in failing to yield the right of way at a street intersection, failing to give a proper signal at the time of entering a street intersection, operating the truck at an excessive and dangerous rate of speed, in excess of twenty miles per hour, and in suddenly driving out into the intersection, after having slowed down the speed of the truck as it approached the intersection as though it was going to stop, and negligence on the part of the driver of the transfer company's truck in driving at an excessive and dangerous rate of speed and in failing to keep a proper lookout for other vehicles.

Appellant, in its answer, charged the driver of the transfer company's truck with driving at an excessive rate of speed, failing to keep a lookout, with being negligent in attempting to turn south on Virginia street while traveling at a high and dangerous rate of speed, in not having the truck under control, in not slowing down to a reasonable speed in approaching the intersection, and in failing to sound a warning signal.

Appellant also alleged contributory negligence on the part of Yanez in failing to warn the driver of the transfer company's truck to drive slowly, and to keep a lookout for other vehicles at the intersection, in not requesting the driver to permit him to alight when he saw, or should have seen, that he was exceeding the speed limit, and in not keeping a lookout for other vehicles, and in failing to warn the driver of the approach of appellant's truck.

In response to special issues, the jury found that the transfer company's truck was being operated at a speed in excess of twenty miles per hour; that such negligence was a proximate cause of the injuries suffered by Yanez; that the driver of appellant's truck failed to yield the right of way and failed to keep a proper lookout; that such negligence was a proximate cause of the injuries to Yanez; and that the negligence of appellant's driver to yield the right of way and keep a lookout were sole proximate causes of such injuries.

Upon such finding being returned into court, the trial judge refused to receive the verdict, and pointed out to the jury the conflict between its finding. Thereupon the jury retired, and later returned a verdict with a finding that the speed of the transfer company's truck was not a proximate cause of the injuries.

The trial court then rendered judgment against appellant for $2,500, the amount of damages fixed by the jury.

The court defined "negligence" in its charge as follows:

"`Negligence' is the doing of that which a person of ordinary prudence would not do, or in failing to do that which a person of ordinary prudence would do under the same or similar circumstances.

"`Negligence' is likewise the breach of a duty enjoined by the statute law of the State. The Statutes of the State provide that one shall not drive a motor vehicle in the public streets of the city in excess of twenty miles per hour. The statutes further provide that the operator of a vehicle approaching an intersection on a public highway shall yield the right of way to a vehicle approaching such intersection from the right of such first named vehicle."

Appellant objected to the latter portion of the charge on the ground that it was a general charge and therefore not a proper charge to be given in a case submitted on special issues.

While it may be that the giving of the charge was unnecessary, yet we cannot agree that it is a general charge. It is at most a definition of statutory negligence which would not necessarily be included in the first part of the definition.

Appellant's argument that it is an instruction on the law of the case and that it tended to inform the jury of the effect of its answers calls for no discussion. No such objections were made in the trial court.

When the jury had returned its first verdict into court, the trial judge gave to the jury the following instruction:

"Gentlemen of the Jury:

"The court cannot receive your verdict on account of a conflict of findings.

"In answer to question No. 4 you have found that negligence of the defendant transfer company was a proximate cause of the injuries to plaintiff; in answer to questions 1a and 2a, given at request of defendant transfer company you have found in 1a that the failure of the driver of the grocery company truck to yield the right of way was the sole proximate cause of the injury to plaintiff, and in 2a that the failure of the defendant's grocery company driver to keep a lookout was the sole proximate cause of the injury. The findings conflict. An event may have one or more proximate causes, but if an act or omission is the sole proximate cause of an event, it excludes all others."

Appellant's bill of exception, after setting out the returning of the first verdict, the court's refusal to accept it, the instruction above quoted, and the fact that the jury retired and changed its answers to issues 4 and 1a, recites: "To which action of the court in refusing to accept the verdict originally tendered the court by the jury, and in giving the jury the further instructions as above set out, and in instructing the jury to retire and further consider its verdict after it had already rendered its verdict by finding its answers to the issues submitted to it, and signing the verdict by and through its foreman, and to the act of the court in receiving the verdict as changed by the jury after its second consideration and deliberation of the issues submitted to it, the defendant, James A. Dick Company, in open court excepted, and moved the court to set aside the verdict received and accepted by the court, and to accept as the verdict of the jury the verdict with the answers therein contained as first and originally answered by the jury, which motion the court overruled."

Appellant in its brief argues that the instructions should not have been given because they pointed out the answers which conflicted with each other and constituted a general charge. It will be seen from the above-quoted bill of exception that no such objections were made in the trial court, and therefore cannot now be raised. Appellant also contends that it was error for the court to give the additional instructions after the jury had retired and made findings on the issues submitted, and argues that under article 2187 the court was prohibited from giving any instructions except before the argument was begun.

It is not disputed that there existed a conflict between certain answers of the jury in its first verdict. Under such a state of facts, we think it clearly was the duty of the court to refuse to accept the verdict and send the jury back for further deliberations. Turner v. Missouri, K. & T. Railway Co. (Tex. Civ. App.) 177 S. W. 204 (writ refused); Wichita Valley Railway Co. v. Southern Casualty Co. (Tex. Com. App.) 284 S. W. 940; St. Louis, S. F. & T. Railway Co. v. Kaylor (Tex. Com. App.) 291 S. W. 216—the holdings of the Commission in the last two cases being approved by the Supreme Court. In the first case it was also held that the court's calling the attention of the jury to the conflicts was not error.

Therefore we think it proper for the court to refuse to accept a conflicting verdict and to inform the jury as to where the conflict exists. Certainly the court should not in so doing suggest to the jury how the changes should be made so as to remove the conflict. Such was not done in this case, and no such objection was made to the instruction given.

We also find that under article 2198, our courts have held that the court was authorized to give the jury further instruction without any request from it therefor. Cockrell v. Egger (Tex. Civ. App.) 99 S. W. 568; Cheek v. Nicholson & Co. (Tex. Civ. App.) 146 S. W. 594 (writ refused); Gotoskey v. Grawunder (Tex. Civ. App.) 158 S. W. 249; Mulligan v. McConnell Bros. (Tex. Civ. App.) 242 S. W. 512; Richardson v. Wilson (Tex. Civ. App.) 178 S. W. 566.

The cases cited by appellant are not in point. Hickman v. Talley (Tex. Civ. App.) 8 S.W.(2d) 267, was where the court, upon the jury being unable to agree, submitted other and different issues. In International & G. N. Railway Co. v. Parke (Tex. Civ. App.) 169 S. W. 397, the charge of the court was not read to the jury before the argument, and in Needham v. Cooney (Tex. Civ. App.) 173 S. W. 979, the court was dealing with the question of reserving exceptions to a peremptory charge.

We have concluded that the assignments on this point present no error and must be overruled.

Appellant, in its seventh assignment of error, complains of the trial court's...