Koock v. Goodnight

• Decision Date: 21 March 1934
• Docket Number: No. 7941.,7941.
• Citation: 71 S.W.2d 927
• Parties: KOOCK et al. v. GOODNIGHT et ux.
• Court: Texas Court of Appeals

71 S.W.2d 927

KOOCK et al. v. GOODNIGHT et ux.

No. 7941.

Court of Civil Appeals of Texas. Austin.

March 21, 1934.

Rehearing Denied May 16, 1934.

Appeal from District Court, Hays County; E. M. Dodson, Judge.

Action by A. C. Goodnight and wife against O. L. Koock and others. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered.

White, Taylor & Gardner, of Austin, and R. E. McKie, of San Marcos, for appellant.

E. M. Cape and Will G. Barber, both of San Marcos, for appellee.

BAUGH, Justice.

This was a suit for damages for personal injuries to Ella May Goodnight, wife of A. C. Goodnight, resulting from being struck by an automobile driven by E. A. Jordan, on highway No. 2, between Austin and San Marcos. The collision occurred about 8 o'clock on the morning of October 7, 1930, a few miles northeast of the city of San Marcos. Trial was to a jury, and, upon their answers to special issues finding Jordan guilty of negligence in several different respects, judgment was rendered for plaintiffs, appellees here, for $11,534, from which the defendants have prosecuted this appeal.

In view of the conclusion reached, we deem it unnecessary to enumerate the various parties sued as defendants and the bases upon which liability against them for Jordan's acts is sought to be established. Nor is it necessary to discuss all the issues presented on the appeal, since we have concluded that the one question hereinafter discussed disposes of the case.

At the place of the accident, a few miles from San Marcos, the highway runs approximately north and south and is straight, with a slight downhill grade to the south. The plaintiff and her husband operated a farm and dairy, and their residence was about 100 feet east of the highway opposite the point where the collision occurred. On the morning in question, Mrs. Goodnight had crossed the highway from her home, and from the west side thereof had signaled to and stopped one of the regular south-bound passenber busses of the Greyhound line, operating between Austin and San Antonio, for the purpose of taking passage thereon en route to Falfurrias. The bus had pulled up alongside on the right or western side of the highway, had stopped to take her on board, and the driver had opened the door of the bus, on its right-hand side, for that purpose. We copy from the plaintiffs' petition her allegations, which were sustained by the proof as to what transpired at this point: "As the plaintiff, Mrs. Goodnight, was in the act of boarding said bus, and had either actually gone thereupon, or was in the act of so doing, it developed that she had inadvertently left her purse, with necessary traveling funds therein, at her home immediately adjacent to and just across and on the opposite side of that half of the road whereon said bus had stopped to take her aboard, and she thereupon undertook to run hurriedly into and across said road, or a portion thereof, toward her home, to get said purse, at same time calling to her little daughter, or some other member of her family, to bring same to her (which her said daughter instantly proceeded to do), and, as said Mrs. Goodnight undertook, under the circumstances here shown, to get such purse, she hurriedly passed from the right or most western side of the front end or portion of said bus around the front end thereof, and, just as she emerged, or was in the act of emerging, from in front of said bus, and was in the act of crossing, or starting to cross, that road, going toward her home for such purpose, and toward her daughter, who was bringing such purse to her, she was struck by an automobile, operated, controlled and driven by the defendant Jordan, and, as a result, she received the injuries herein alleged and complained of."

She further alleged, which allegations were also substantially sustained by the proof, that: "Said bus was as much as, or more than, eight feet wide at the rear and center thereof, but at the front it was sloped or drawn in on each side; that a person passing in front thereof, on the ground, as Mrs. Goodnight then did, could not see a car approaching from the rear of the bus unless and until she had passed, not only the front end of said bus, but also the line of the wider center and rear portion thereof; and, when said Mrs. Goodnight did, as herein alleged, start to meet her child coming with the purse, she could not, and did not, reach a point where she could see the Jordan car until she had cleared, by some two or three feet, the front portion of said bus; and, just as she so cleared the same and had taken, perhaps, one additional step, she was suddenly struck and run down by the defendant Jordan's car."

The defendant Jordan, driving his own car, had been running behind and in sight of said bus for several miles, saw the plaintiff standing on the right or west side of the highway, saw the bus stop and the door open to take her on board, and saw her start to embark thereon. He thereupon turned to the left and undertook to pass said bus on its left or east side, and when alongside same saw plaintiff emerge hurriedly into the road around in front of the bus, but was too near her to avoid the collision. There were some discrepancies and inconsistencies in the testimony as to how far Jordan was from the rear end of the bus when he turned to the left to pass it, but we think they are of no consequence. The highway was wet, due to recent rainfall, and, though there is some controversy as to rate of speed of Jordan's car, no issue is made but that he was traveling within the statutory speed limits, and that he turned to the left far enough back from the rear of the bus to pass same without risk of collision with the bus itself.

The jury found Jordan guilty of negligence in all of the several separate respects charged, and that each of said acts of negligence was a proximate cause of the injuries sustained. While the findings in some respects are, we think, without evidence to support them, the evidence was sufficient to sustain other findings and to support the judgment, absent contributory negligence on the part of plaintiff; and we pretermit a discussion of the issues of defendant Jordan's negligence. We have reached our conclusions herein on the postulate that Jordan was guilty of negligence.

Deplorable as the collision was, with its dire results and tragic consequences, we think the conclusion is inescapable, under all the facts and circumstances, that plaintiff was guilty of contributory negligence as a matter of law.

The injuries to the unfortunate woman destroyed her memory as to anything that occurred at that time. Neither the husband nor her little girl, who had gone for her purse, saw the actual collision. The driver of the bus, after he had opened the door for her to enter the bus, and had consented to wait for her to get her purse, was otherwise occupied, and did not see the collision. Only a passenger on the bus, who was seated immediately behind the driver on the left side of the bus, saw all the acts of plaintiff immediately preceding the collision. The witness testified with respect thereto as follows:

"A. Well, the lady was standing on the right side of the road with her bag in her hand, and she waved the bus down and she approached the door to get on the bus, and just before she got to the door, she said, `Oh, I forgot my purse', and instantly turned afterward she hollered to somebody in the house `my purse, my purse', and started running across in front of the bus to the house, and she ran directly in the path of this approaching car.

"Q. Where did she run? A. Directly in the path of this approaching car, and the car struck her.

"Q. What part of the car struck her? A. The right side of the car struck her—I couldn't tell exactly where she was—she hit on the right side of the hood and fender, and knocked directly down the road; and the instant the car struck the lady, or maybe before I couldn't say, the driver of the car turned to the left, and headed towards the corner of the fence there, and skidded; he applied his brakes, I could tell by the sound, and afterwards by the tracks, and after the car swerved around this way and knocked down two or probably three posts and the car came to a stop, and the woman lay right in the middle of the left hand side of the road, maybe a little over half way between the bus and the fence."

"Q. After this lady called for her purse and she started across the front end of the bus, was she going fast or slow? A. She was moving fast.

"Q. Do you know about how fast she was going from the bus, from the left hand side of the bus before the car struck her? A. I cannot say exactly—between four or seven feet, something like that.

"Q. Did you ever see her look up and down the road? A. No sir, she may have been aware just when it struck her, but not before that; she was already in the position when she was struck.

"Q. Did she look up at any time until the car was right on her? A. No sir, I didn't see her; she was facing the house.

"Q. Did the lady have on a hat? A. I believe she did."

Jordan testified that, just as his car drew alongside the center of the left side of the bus, plaintiff ran from in front of the bus into the highway directly in front of his car; that he immediately applied his brakes and turned to the left, but that it was impossible to avoid striking her; that she wore a hat, was looking down directly in front of her; and that she neither stopped in front of the bus nor looked to either side. He also testified that, had she stopped before running into the center of the highway,...