Jones v. Sunshine Grocery & Market

• Decision Date: 07 January 1922
• Docket Number: (No. 8611.)
• Citation: 236 S.W. 614
• Court: Texas Court of Appeals
• Parties: JONES et al. v. SUNSHINE GROCERY & MARKET.

Page 614

236 S.W. 614

JONES et al. v. SUNSHINE GROCERY & MARKET.

(No. 8611.)

Court of Civil Appeals of Texas. Dallas.

January 7, 1922.

Appeal from Dallas County Court, at Law; W. N. Coombes, Judge.

Action by the Sunshine Grocery & Market against W. L. Jones and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

J. W. Gormley and Thomas, Milam & Touchstone, all of Dallas, for appellants.

Allen & Allen, of Dallas, for appellee.

HAMILTON, J.

This suit originated in the justice of the peace court, precinct No. 1, Dallas county, Tex. It was appealed from that court to the county court by the appellants. A judgment having been entered against them in the latter court, they prosecuted their appeal to this court.

No written pleadings were filed by the plaintiff (appellee) either in the justice of the peace's court or in the county court. Appellants answered merely by general demurrer and general denial.

In the evening of August 18, 1920, an employee of appellants was driving a Ford truck belonging to appellants along Greenville avenue, a street in the city of Dallas, when some character of defect in the machinery developed which prevented the automobile from operating, and as a result the driver could proceed no further. He pushed the car as far as he could toward the side of the road, and soon thereafter, his employer, W. L. Jones, came along, and the driver went away with him. No light was put on the truck thus abandoned. According to the testimony of the driver of the truck, who testified for appellants in the case, the engine stopped running and the truck could not be moved with its own power. The driver pushed it to a position about 2½ feet distant from the middle of the road. He was unable to move it further out of the road because of a mound in the road caused by the laying of some kind of pipe. It remained in the road until about midnight. W. L. Jones testified that he returned to the car as soon as he could obtain repairs with which to fix it, and that he went for the repairs himself, and came back and moved the truck as soon as he got them.

Some time between 8 and 9 o'clock in the evening S. B. Fowler, a member of the firm of Sunshine Grocery & Market, while traveling north on Greenville avenue in a Ford car, came into collision with the truck left standing in the position above described, and the collision caused the damages for the recovery of which the suit was filed. The accident occurred after dark, and it appears from the evidence that the street was of sufficient width to enable a vehicle, prudently driven, to pass to the left of the abandoned truck without any danger of coming into contact with it.

Upon the request of appellants the judge of the trial court filed findings of fact and conclusions of law. Under the head of "Findings of Fact," and immediately preliminary to the findings of fact contained in the record, the trial court states the allegations of plaintiff's (appellee's) oral pleadings to be as follows: That Greenville avenue is a public highway in the city of Dallas which defendants (appellants) willfully obstructed on the 18th day of August, 1920, by leaving an automobile belonging to them in such public highway unguarded and without any light or other signal to warn persons using the highway of the presence of said automobile, and that on such date an automobile belonging to appellee struck appellants' automobile and was thereby injured. The statement contains in addition to the foregoing a recital of the elements of damage.

The court found from the evidence that Greenville avenue is a public avenue within the limits of the city of Dallas; that on August 18, 1920, appellants were guilty of willfully obstructing said highway by leaving their automobile truck in it unguarded and without any lights or other signal thereon; that such automobile was headed north, and "was left within 2 feet of the middle of the highway and to the right going north." The court found that appellants were guilty of negligence in so leaving the automobile without any person to guard it, or without moving it to one side of the highway beyond the regular traveled portion thereof, and failing to place a light on it, and that such negligence was a willful violation of the laws of the state regulating highways. The court further found that appellee, while traveling north on Greenville avenue about 8:30 o'clock in the evening of August 18, 1920, in an automobile delivery truck, was struck by appellants' automobile while it was obstructing the highway as already found by said court, thereby injuring and damaging appellee's automobile to the extent represented by the amount of the judgment. The court found that immediately to the right of the traveled portion of the highway was an elevation caused by the filling in of a ditch by the gas company; that it extended along the side of the highway, and was about 1 foot high. It was found that appellee's car was properly equipped with sufficient lights for it to be operated with safety at the time of the accident, and that it was then being operated at a lawful and safe rate of speed, and that appellee was keeping a sufficient lookout, for obstructions in the road, but did not see appellants' car until the collision. And it was further found that appellee was using the proper degree of care in operating the car which came into collision with the abandoned truck, and that appellee was not guilty of contributory negligence.

From the foregoing findings of fact the trial court made the following conclusions of law:

(1) "The defendants were guilty of violating the law regulating travel on highways, and were also guilty of negligence in leaving their said automobile in said highway in the manner they did, and such acts occasioned the damages complained of by the plaintiffs."

(2) "The plaintiffs are entitled to recover a judgment against defendants and the sureties on their appeal bond...