Magee v. Cavins

• Decision Date: 17 October 1917
• Docket Number: (No. 1224.)
• Citation: Magee v. Cavins, 197 S.W. 1015 (Tex. App. 1917)
• Parties: MAGEE v. CAVINS.
• Court: Texas Court of Appeals

Page 1015

197 S.W. 1015

MAGEE v.CAVINS.

(No. 1224.)

Court of Civil Appeals of Texas. Amarillo.

October 17, 1917.

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.

HALL, J.

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:

"No. 3.Did defendant, at a time and place as alleged in plaintiff's petition, drive an automobile to and towards plaintiff without watching out to observe plaintiff?Yes."

"No. 4.If defendant, at a time and place as alleged in plaintiff's petition, did drive an automobile to and toward plaintiff without watching out to observe him, was it negligence so to do?Yes."

"No. 5.If defendant, at a time and place as alleged in plaintiff's petition, did drive an automobile to and toward plaintiff without watching out to observe him, was the same the proximate cause of plaintiff's injury?Yes."

"No. 5½.Did plaintiff, at a time and place as alleged in defendant's answer, fail to look or listen for approaching vehicles, or step suddenly and unexpectedly into the road in front of defendant's moving automobile, without looking or listening for approaching vehicles?Yes."

"No. 6.Was it negligence for plaintiff to be at the place where he was while defendant was approaching 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 eyes fixed upon the passenger train, or to fail, if plaintiff did fail, to look or listen for approaching vehicles, or to step suddenly and unexpectedly, if he did so, into the road in front of defendant's moving automobile, without looking or listening for approaching vehicles?Yes."

"No. 7.If it was negligence of plaintiff to be at the place where he was when defendant was approaching, with his hand to his face, shading his eyes and observing the incoming train, or with his back turned upon the approaching defendant and his attention fixed upon the passenger train, or to fail, if plaintiff did fail, to look or listen for approaching vehicles, or to step suddenly and unexpectedly, if he did so, into the road in front of defendant's moving automobile, without looking or listening for approaching vehicles was same the proximate cause of his injury?Yes."

"No. 8.If defendant, at a time and place as alleged in plaintiff's petition, did drive an automobile to and toward plaintiff without watching out to observe him, and if same was negligence, and if it was negligence of plaintiff to be at the place where he was while defendant was approaching with his hands 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 to fail, if plaintiff did fail, to look or listen for approaching vehicles, or to step suddenly and unexpectedly, if he did so, into the road in front of defendant's moving automobile, without looking or listening for approaching vehicles, did such negligence, if any, of plaintiff, concur with such negligence, if any, of defendant, so that such concurring negligence, if any, of plaintiff and defendant, became the proximate cause of plaintiff's injury?Yes."

"No. 9.If the proximate cause of plaintiff's injury was the negligence, if any, of defendant, as those questions of negligence and proximate cause are submitted for your determination in special issues Nos. 3 and 4, then what sum of money, if paid at the present time, would compensate plaintiff for such injury?No damages allowed."

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 exceeding ten miles per hour, and that his brakes were in good...