Levlon v. Dallas Ry. & Terminal Co.
| Decision Date | 07 May 1938 |
| Docket Number | No. 12349.,12349. |
| Citation | 117 S.W.2d 876 |
| Parties | LEVLON et ux. v. DALLAS RY. & TERMINAL CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Towne Young, Judge.
Action by R. C. Levlon and wife against the Dallas Railway & Terminal Company to recover for damages sustained when plaintiffs' automobile, which was being pushed by defendant's street car, suddenly started and crashed into a wall. Judgment for defendant, and plaintiffs appeal.
Affirmed.
Frank Cusack, of Dallas, for appellants.
Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, for appellee.
R. C. Levlon and wife sued Dallas Railway & Terminal Company to recover damages for personal injuries sustained by Mrs. Levlon and for the partial wrecking of their automobile, alleged to have been occasioned by the negligence of defendant company. The case was submitted to a jury on special issues and resulted in judgment for the defendant, from which plaintiffs appealed.
The material facts, undisputed and as found by the jury, substantially are these: About 7:45 on the afternoon of July 15, 1935, plaintiffs were en route to their home, riding in their Dodge sedan, traveling North on Fairmount Street in the City of Dallas, Mr. Levlon at the wheel, the auto coming to a standstill on defendant's railway track at a boulevard stop at the intersection of Fairmount and Cedar Springs Road; the engine of plaintiffs' automobile having died or becoming inactive, after futile efforts to start, Mr. Levlon got out of the auto and requested the motorman of one of defendant's street cars—that in the meantime had approached from the rear and stopped within a few feet of the stalled automobile—to give the automobile a push with the street car; the motorman complying with this request, brought the street car in contract with the automobile and pushed it but a short distance, when the motor suddenly awakened and the automobile started, as described by Mrs. Levlon (who was in the car alone at the time), immediately it was moved, with more or less of a jerk; the auto eluded Mr. Levlon, who was in the street, increasing speed, the steering wheel being grabbed by Mrs. Levlon (who could not drive), the car was caused to swerve to the right, making a "U-turn", ran into a filling station, collided with a brick wall, resulting in severe personal injuries to Mrs. Levlon and the partial wrecking of the automobile. The motorman did not leave the street car, did not know that Mrs. Levlon could not drive the automobile, or that the same was in gear or that the ignition had not been cut off. Although the jury convicted the defendant of actionable negligence in several respects, this phase of the case, in our opinion, need not be further noticed, in view of the disposition which we make of the case.
Among other grounds of contributory negligence alleged was that, prior to the time the motorman was requested to shove the automobile with the street car, Mr. Levlon had failed to cut off the ignition switch. This issue on being submitted was found by the jury in favor of the defendant, that is, that such failure on the part of Mr. Levlon was negligence and a proximate cause. This finding precluded recovery by plaintiffs, hence, in our opinion, judgment for the defendant was proper.
However, if under the circumstances defendant company could be held liable at all for the act of the motorman, in using the street car to push the stalled automobile (a point not briefed by defendant), we do not think the mere pushing of the automobile the proximate cause of the results that followed. Seemingly, the plaintiffs do not complain of the manner in which the force of the street car was applied to the automobile—but rather of the fact that it was pushed at all. After making the request of the motorman, Levlon stepping aside, the street car came in contact with the automobile, and on being pushed a very short distance, the motor became active, the auto began to move, and Mrs. Levlon (not being able to control the car) seemingly, in fright grabbed the steering wheel, pulled to the right in the manner heretofore described, the...
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