Lightsey Black & White Cab Corporation v. Littlefield

• Decision Date: 27 February 1932
• Docket Number: No. 12641.,12641.
• Citation: 48 S.W.2d 766
• Parties: LIGHTSEY BLACK & WHITE CAB CORPORATION v. LITTLEFIELD.
• Court: Texas Court of Appeals

48 S.W.2d 766

LIGHTSEY BLACK & WHITE CAB CORPORATION v. LITTLEFIELD.

No. 12641.

Court of Civil Appeals of Texas. Fort Worth.

February 27, 1932.

Rehearing Denied March 19, 1932.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by L. L. Littlefield against Lightsey Black & White Cab Corporation. From the judgment, defendant appeals.

Affirmed.

Chas. T. Rowland, of Fort Worth, for appellant.

Baskin, Eastus & Greines, of Fort Worth, for appellee.

BUCK, J.

While L. L. Littlefield, a negro, was en route to his home in the southeast part of the city of Fort Worth, riding a street car and going out Evans avenue in a southerly direction, the street car stopped at and near the corner of Evans avenue and Myrtle street to let him off. The plaintiff, in a suit against the Lightsey Black & White Cab Corporation, pleaded that while he was in the act of alighting from said street car he was suddenly and without warning struck by a motor vehicle being driven and operated by the defendant, its agents, servants, and employees, and was seriously and permanently mangled and injured. That there was no safety zone established at or near the corner of Evans avenue and Myrtle street, and that defendant, its agents, servants and employees in charge of and operating said motor vehicle at the time and place in question was guilty of negligence in operating said motor vehicle at a high and excessive rate of speed, which negligence was the proximate cause of the injuries and damages sustained by the plaintiff. That the defendant was guilty of negligence in operating the same at the rate of speed the same was being operated, and, under the circumstances and conditions surrounding and attending the operation of said motor vehicle, which was the proximate cause of the injuries and damages sustained by the plaintiff. That the defendant was guilty of negligence in failing to stop said motor vehicle while said street car was discharging its passengers, in violation of Ordinance 421 of the city of Fort Worth, reading as follows: "All vehicles must not pass street cars when stopped to take on or discharge passengers, except where safety zones are established, when reasonable care must be exercised."

Plaintiff alleged that the defendant disobeyed and disregarded this ordinance, and was guilty of negligence in doing so.

Plaintiff alleged that the defendant was guilty of negligence in not having its motor vehicle in proper condition and repair, and in not having the brakes and other parts of said motor vehicle in such proper condition and repair so that same could be stopped within a reasonable time and distance by the use of means reasonably at the command of said defendant.

Plaintiff further alleged that he had been injured by being hit by a cab operated by an agent of defendant, and his right arm was broken, his right cheek bone was broken, three of his upper front teeth were knocked out, and one of his upper front teeth was broken; his left leg was crushed, cut, and bruised, his lower lip was cut and bruised, his right jaw was cut and bruised in the portion thereof below the eye, his chest was crushed and injured, and he received a severe blow on and about his head, and other parts and portions of his body, and the members thereof were cut, strained, sprained, and injured.

Plaintiff asked damages in the sum of $20,000, alleging that he was permanently injured and suffered great physical and mental anguish, and that he had been forced to incur medical treatment at an expense of $300.

Defendant answered by a general demurrer and a general denial, and specially pleaded that, if the plaintiff was injured at the time and place alleged in his petition, immediately prior to the accident, if any, plaintiff was a passenger on a street car of the Northern Texas Traction Company traveling in a southerly direction on Evans avenue, and it was a well-known and recognized custom for all passengers on said street cars in leaving the same to alight from the rear end of said car; but that plaintiff, disregarding the custom of alighting at the time of the accident, if any, instead of alighting from the rear of said street car, negligently and carelessly and through his own contributory negligence alighted from the front end or southern end of the street car in disregard of the custom for discharging passengers, and without keeping a proper lookout for motor vehicles passing in and along the right-hand side of Evans avenue.

The cause was tried before a jury, and the trial court defined negligence, ordinary care, and proximate cause. The jury answered the following special issues:

"(1) Was the driver of the automobile which struck the plaintiff operating the same at a negligent rate of speed? (In answering this question the jury were instructed that it was to be answered without reference to the criminal speed laws, and was to be tested by the definition of ordinary care as given.) Answer: Yes.

"(2) Was such speed a proximate cause of the plaintiff being struck? Answer: Yes.

"(3) Was the operator of the car which struck the plaintiff attempting to drive the same past the street car when stopped to take on or discharge passengers? Answer: Yes.

"(4) Was such attempt inquired about in No. 3, if any you have found, negligence? Answer: Yes.

"(5) Was such negligence, if any, a proximate cause of the plaintiff being struck by the automobile? Answer: Yes.

"(6) Did the driver of the automobile sound a suitable warning as he approached the place where his automobile struck the plaintiff? Answer: No.

"(7) Was such failure negligence? Answer: Yes.

"(8) Was such negligence, if any you have found in No. 7, a proximate cause of the plaintiff being struck by the automobile? Answer: Yes.

"(9) Was the driver of the car that struck the plaintiff using ordinary care as he approached the place where the plaintiff was struck, to keep a lookout for passengers alighting from the street car? Answer: No.

"(10) Was such failure, if any you have found in No. 9 a proximate cause of the plaintiff being struck by the automobile? Answer: Yes.

"(11) Did the injury to the plaintiff occur without any negligence on the part of either the plaintiff or the driver of the cab? Answer: No.

"(12) As the plaintiff alighted from the street car, was he using ordinary care to keep a lookout for automobiles approaching from the north? Answer: Yes.

"(14) What sum, if paid now in cash, will fairly and reasonably compensate the plaintiff for the injuries, if any he sustained, of which his being struck by the automobile on the occasion in question was the proximate cause, if any? Answer: $15,000.00.

"(15) Do you find from the evidence that plaintiff after alighting from the street car started west to the corner of Evans Avenue and Myrtle Street and then changed his course back toward the street car from which he had just alighted? Answer: No.

"(18) After Meek discovered the position of apparent peril of plaintiff, did he use ordinary care to use all the means at his command consistent with his own safety to avoid striking the plaintiff? Answer: No.

"(19) Was such failure, if any you have found in the last question, a proximate cause of the accident to plaintiff? Answer: Yes."

Upon this verdict so rendered, the court entered judgment for plaintiff and against the defendant corporation for $15,000.

Upon a motion for rehearing, the trial court required, as a condition for overruling the same, that the plaintiff remit $7,500 of the amount awarded by the jury's verdict, and then rendered judgment against the defendant for $7,500. From this judgment, the defendant has appealed.

Opinion.

The defendant by its first assignment urges that the trial court erred in not sustaining the defendant's general demurrer, because the petition nowhere alleges the defendant's servants, agents, and employees were acting in their scope of duty or employment, and in furtherance of the defendant's business in the operation of the taxi-automobile and at the time of the alleged accident. It does not appear that the trial court was called upon to rule on the question of general demurrer, although there is in the statement of facts an order of the court overruling defendant's general demurrer, but counsel both agree that said order should not be in the record, but is an order of a former trial of the case. Therefore, since the court was not called upon to rule on the question of a general demurrer, such demurrer must be presumed to have been waived by the defendant.

In Dowlin v. Boyd, 291 S. W. 1097, by the Commission of Appeals, it is said: "While the answer of the defendants in error embraced a general demurrer, it (the demurrer) was not presented to the trial judge, and no action was taken thereon. Such being the situation with reference to the general demurrer, the general rule is that appellate courts treat the matter as having been waived, unless the general demurrer presents a question of fundamental error, as, for instance, that the error is of such nature as that it could not be cured by an amendment."

See, also, Stallings v. Wood, 267 S. W. 538, by the Dallas Court of Civil Appeals; Hall v. Williams, 267 S. W. 520, by the Waco Court of Civil Appeals; Fort Worth Mutual Benev. Ass'n v. Jennings, 283 S. W. 910, by the Eastland Court of Civil Appeals, and other cases to the effect that, where the general demurrer has not been presented to the court for ruling, and no ruling has been had thereon, it is presumed that such general demurrer is overruled.

The second proposition complains of the ruling of the trial court with reference to the interrogation of Dave Erwin. Appellant cites no authorities to support said assignment; and moreover, Charles Meek, testifying for the defendant, was asked if he was in the employment of the defendant corporation at the time the accident happened, to which inquiry objection was lodged in the second assignment. Therefore we feel that the second...