Magee v. Cavins
Decision Date | 17 October 1917 |
Docket Number | (No. 1224.) |
Citation | 197 S.W. 1015 |
Parties | MAGEE v. CAVINS. |
Court | Texas Court of Appeals |
Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.
Action by T. S. Magee against T. S. Cavins. From a judgment for defendant, plaintiff appeals. Affirmed.
J. S. Stallings, of Claude, and Reeder & Reeder, of Amarillo, for appellant. Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
This action was brought by appellant, Magee, against appellee, Cavins, to recover damages for injuries alleged to have resulted to appellant by reason of appellee striking appellant with his automobile. Appellant alleged negligence. Appellee answered, denying that he was negligent, and alleged that appellant was guilty of contributory negligence. The case was tried before a jury, and the special issues submitted to the jury and answers returned thereto are as follows:
The first assignment of error is:
"The finding of the jury, in answer to special issue No. 7, that plaintiff's being at the place where he was when defendant was approaching, and with his hand to his face, shading his eyes and observing an incoming passenger train, or with his back turned upon the approaching defendant and his attention fixed upon the passenger train, or plaintiff's failure to look or listen for approaching vehicles, or plaintiff's stepping suddenly and unexpectedly into the road in front of defendant's moving automobile, without looking or listening for approaching vehicles, was the proximate cause of plaintiff's injury, is not supported by the evidence, for the reasons: (a) The proof clearly and affirmatively shows, and the jury found, that defendant, at a time and place alleged in plaintiff's petition, drove an automobile to and toward plaintiff without watching out to observe plaintiff; (b) the proof clearly and affirmatively shows that defendant was driving his car at a speed of not...
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