King v. Brenham Automobile Co.
| Decision Date | 21 February 1912 |
| Citation | 145 S.W. 278 |
| Parties | KING v. BRENHAM AUTOMOBILE CO. |
| Court | Texas Court of Appeals |
Appeal from Washington County Court; Ed. R. Sinks, Judge.
Action by S. S. King against the Brenham Automobile Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Mathis & Teague, for appellant. Buchanan & Stone, for appellee.
This is a suit for damages instituted by appellant against appellee, in which it is alleged that appellee is a common carrier of passengers, for hire, in automobiles, and that on November 5, 1910, while appellant was driving in his buggy along the streets of Brenham, Tex., at night, one of the cars of appellee, which was being operated by an employé of appellee at a fast, reckless, and dangerous rate of speed, collided with and destroyed his buggy, throwing appellant against the front end of the car and inflicting serious and permanent injuries. It was further alleged that appellant was driving a mule, which became frightened and turned the buggy completely around, and ran towards the swiftly approaching automobile, and appellant called to the driver to stop the car, but he disregarded it and ran into the buggy; that the driver saw appellant and could have avoided the collision. It was also alleged that the automobile was not properly lighted, and that the car was greatly exceeding the rate of speed of four miles fixed by ordinance of the city council of Brenham. Appellee filed general and special exceptions, and answered that it was "engaged in the business of renting, hiring, and contracting out to independent contractors automobiles for hire," and had no control or authority over the driver, Ed Pfloughaupt, who was operating the car on the night of the accident, but that he was an independent contractor, and that appellant was guilty of contributory negligence. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellee.
The first assignment complains of the sixth paragraph of the charge, because it instructed the jury that appellant could not recover if he was guilty of contributory negligence, although the driver of the car discovered his danger in time to have avoided the injury by the use of the means at his command. The charge is as follows: "Now, if you believe from the preponderance of the evidence that the defendant company was, on the 5th day of November, A. D. 1910, operating one of its automobiles in the city of Brenham, Washington county, Texas, and that Ed Pfloughaupt, who was driving such automobile, was, at the time, a servant and employé of the defendant company, and that while so operating the same such automobile struck the plaintiff, and thereby injured him, and you further believe from the preponderance of the evidence that said automobile was running at a greater rate of speed than eight miles an hour, or that the same was inadequately lighted, or if you believe from the evidence that the driver operating said automobile discovered the danger, if any, of plaintiff in time to have avoided the injury by the use of all of the means at his command to have stopped the same, and that, had he used all of the means at his command to stop the same, after the discovery of the danger of plaintiff, if any, the injury would have occurred, or if you believe from the evidence that by keeping a proper lookout he could have discovered the danger of the plaintiff, if any, in time to have stopped the automobile in time to have avoided the injury, and that such failure to so discover him, if any, was negligence on his part, and if you believe that the negligence, if any, in any of the above matters was the proximate cause of the injury, if any, and you do not find from the evidence that the plaintiff was guilty of contributory negligence as hereinafter charged, then you will find a verdict for the plaintiff, and assess his damages as hereinafter charged."
The charge is open to the attack made upon it; for the court, after disjunctively stating the circumstances under which appellant should recover, qualifies each one by stating, "if you do not find from the evidence that plaintiff was guilty of contributory negligence." The charge...
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