Jennison v. Darnielle

• Decision Date: 05 December 1940
• Docket Number: No. 4009.,4009.
• Citation: 146 S.W.2d 788
• Parties: JENNISON v. DARNIELLE et ux.
• Court: Texas Court of Appeals

146 S.W.2d 788

JENNISON v. DARNIELLE et ux.

No. 4009.

Court of Civil Appeals of Texas. El Paso.

December 5, 1940.

Rehearing Denied January 9, 1941.

Appeal from District Court, Bexar County; John F. Onion, Judge.

Suit by Edward E. Darnielle, and his wife, against Edward Travis Jennison, for fatal injuries to plaintiffs' son who was struck by defendant's automobile. The finding of the jury on special issues relating to son's contributory negligence was set aside and judgment rendered for plaintiffs for $7,500, and defendant appeals.

Affirmed.

R. H. Mercer, of San Antonio, for appellant.

Johnson & Rogers, of San Antonio (Nat L. Hardy, of San Antonio, of counsel), for appellees.

PRICE, Chief Justice.

This action was instituted in one of the District Courts exercising jurisdiction in Bexar County by Edward E. Darnielle and his wife, as plaintiffs, against Edward Travis Jennison, as defendant, seeking to recover damages for the alleged negligent infliction of personal injuries to plaintiffs' son, as a result of which the son died. The trial was to a jury, submission on special issues. The court, on the motion of plaintiffs, set aside the finding of the jury on special issues numbers 18, 19 and 20, and rendered judgment for the plaintiffs in the sum of $7,500. Defendant Jennison has duly perfected this appeal.

The parties are here designated as they were in the trial court.

In substance, plaintiffs alleged, among other things, that defendant, on or about the 10th day of April, 1937, was driving east on Burr Road in his automobile on the left-hand side of the highway at a negligent rate of speed, and that about the three hundred block negligently ran into plaintiffs' minor son, Thomas Darnielle, who was then between seven and eight years of age, and inflicted personal injuries upon Thomas, as a result of which, in about one week thereafter, he died.

Defendant answered by general exception, general denial, and detailed special pleas of contributory negligence on the part of deceased Thomas and his parents.

Just how the accident occurred is not specifically developed by the pleadings of either party. There was, however, no question raised on the pleadings, and same are deemed to support the issue submitted.

By the evidence and verdict it is established that the defendant was driving his automobile east on Burr Road in the suburbs of the City of San Antonio; that immediately before the collision Thomas Darnielle rode his bicycle out of the Farris driveway onto Burr Road, and the bicycle and defendant's automobile collided. The Farris driveway is a private driveway north of Burr Road, leading into said road; the collision being imminent, the boy seems to have attempted to turn to the right to proceed west on Burr Road; the automobile and bicycle seem to have side-swiped each other; the impact, as evidenced by marks on the rear fender and handle of defendant's car, was on the left rear part of defendant's car as it was going easterly.

The jury found in favor of plaintiffs on the negligent rate of speed of defendant, and that same was a proximate cause of the injuries to their son; further, that just prior to the collision defendant was operating his car on the left-hand side of the highway, and that same was negligence and a proximate cause of the injury; against plaintiffs on issue as to defendant's car not being under control and as to lookout; damages were found in the sum of $7,500; in favor of plaintiffs on all issues of contributory negligence submitted, save as to the issue of negligent rate of speed.

It is deemed necessary to here set out this finding, which is comprehended in issues numbers 18, 19 and 20.

"Question No. 18: Do you find from a preponderance of the evidence that at the time and on the occasion in question, Thomas Darnielle was operating his bicycle at a negligent rate of speed? Answer: Yes.

"Question No. 19: Do you find from a preponderance of the evidence that such act, if any, was negligence? Answer: Yes.

"Question No. 20: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the accident? Answer: Yes."

On motion of plaintiffs, of which due notice was given, the above findings were set aside and then judgment entered on the verdict for plaintiffs.

There can be no question that with these findings the verdict was for the defendant; without them, in favor of plaintiffs. The pleadings of defendant were sufficient to tender the issue, and the only question here is as to whether the evidence raised the complete issue.

By the very terms of Article 2211, Vernon's Civil Statutes, under which the trial court acted, justification for such action must find support in the fact that the jury finding had no support in the evidence.

An act or omission alleged to be negligent, to constitute same a defense to, or cause of action for, negligence, must be established. The evidence must likewise establish that the acts or omissions have the quality of negligence; further, that same is a proximate cause of the injury.

The act in question here is the rate of speed plaintiffs' son came out of the driveway. In order to raise the issue as to such rate of speed being negligence, the rate thereof must be established with some degree of definiteness. It need not be established with mathematical certainty, but to judge the quality of an act, what the act was must be shown. In determining the rate of speed the child came out of the driveway the jury had the circumstances surrounding the accident. The Farris driveway sloped down as it led into Burr Road; the view west from the driveway on Burr Road, as to which the evidence was somewhat conflicting, was obscured to an extent; there was the manner and consequences of the accident, the position of the two vehicles after the accident; the effect thereof on the respective vehicles, the relative position of the two vehicles after the accident.

The fact that the Farris driveway sloped toward Burr Road, standing alone, certainly of itself would not tend to establish that Thomas rode his bicycle down same at a negligent rate of speed. It would render it possible for him, perhaps, to operate same at a greater rate of speed than he could have done on a level road or uphill.

We cannot see that the other circumstances above narrated throw any light upon the rate of speed at which this child was operating his bicycle at the relevant time. If this issue was raised, it was by the testimony of defendant and the witness Berry. Defendant testified that he saw the boy when his car was fifteen feet from the west line of the Farris driveway; that he was driving his automobile at a rate of speed of from twenty-five to thirty miles an hour, the boy was coming due south at a terrific rate of speed; that he turned to the right, and that the boy was attempting to turn to his right in order to get down the road going west; the contact between car and bicycle was slightly west of the driveway. The following is reproduced from the deposition of the defendant:

"Q. About what rate of speed was the child going? A. I have no idea, all I can tell you he was going fast.

"Q. Was he going as fast as you were? A. How could I say? He could hardly do that on a bicycle.

"Q. Would you assume he was going as much as ten miles an hour? A. I just could not estimate that, all I know is that for a bicycle he was traveling very fast.

"Q. In other words, it is your position now that you do not know how fast he was going, or is it your position that you do know? A. I will tell you this, he was going so fast that his bicycle was trembling.

"Q. From the time you saw him until the time of the impact you could denote the tremor of the bicycle, could you? A. Yes."

In our opinion, all that this testimony amounts to is an opinion by the witness that the boy was going fast. How fast, he could not say. It gives us an impression of the witness, but no standard to judge of the correctness of such impression.

The witness Berry testified:

"Q. Was this bicycle coming fast or slow, or just how was it coming? A. Well, it appeared to me when I saw it that he shot out just like a bullet; that is just how fast the thing happened. He must have gathered up a tremendous amount of speed coming down the driveway."

Now the last sentence of the quoted answer has no probative value and is simply an argument of the witness. The gist of the statement is, he came out of the driveway like a bullet. It seems to us that the evidence of the two witnesses above quoted is lacking in definiteness. This lack of definiteness might be explained in part by lack of opportunity to form a correct judgment of the rate of speed of the bicycle. The occupants of the car were traveling, by their own admission, at a minimum rate of at least 36.62 feet per second. Their opportunity of forming their impression was confined to a fractional portion of a second. This, however, were the testimony more definite, might go only to the weight thereof.

A number of cases have held this character of testimony admissible. Galveston H. & S. A. Ry. Co. v. Huebner, Tex.Civ. App., 42 S.W. 1021; McCabe v. San Antonio Traction Co., 39 Tex.Civ.App. 614, 88 S.W. 387; Beaumont Traction Co. v. Dilworth, Tex.Civ.App., 94 S.W. 352; San Antonio Public Service Co. v. Murray, Tex.Civ.App., 59 S.W.2d 851; Sanders v. Lowrimore, Tex.Civ.App., 73 S.W.2d 148.

However, we do not believe that any one of the above cited cases is authority that a finding of negligent rate of speed is justified from such testimony where it stands alone and uncorroborated.

Defendant, in justification of the submission of the issue in question, cites the case of Ranne v. Jackson, Tex Civ.App., 125 S.W.2d 407. There, the witness testified that "Jackson (the plaintiff) was `going plenty fast; just as fast as his car would go.'" Jackson (plaintiff) testified that when he first saw the truck it was about 225 feet from him, and about sixty or...