Manlove v. Lavelle

• Decision Date: 30 November 1921
• Docket Number: (No. 6617.)
• Citation: 235 S.W. 324
• Parties: MANLOVE et ux. v. LAVELLE et al.
• Court: Texas Court of Appeals

235 S.W. 324

MANLOVE et ux. v. LAVELLE et al.

(No. 6617.)

Court of Civil Appeals of Texas. San Antonio.

November 30, 1921.

Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.

Action by Thomas Lavelle, by next friend, and another against W. C. Manlove and wife. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Cobbs, Blankenbecker & Wiggin, of San Antonio, for appellants.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellees.

SMITH, J.

An automobile driven by Mrs. W. C. Manlove and a bicycle ridden by Thomas Lavelle, a 15½ year old boy, collided at the intersection of Taylor and Fourth streets, in San Antonio, resulting in certain injuries to Lavelle. Mrs. Glory Lavelle, for herself and as next friend of the injured boy, her son, brought suit against Mrs. Manlove and the latter's husband, resulting in the recovery of a judgment in favor of Mrs. Lavelle for $300, and in favor of the son for $500. The acts of negligence charged against Mrs. Manlove were that she failed to keep a proper lookout in turning into Taylor street from Fourth street, failed to keep her automobile under control, and was operating the car at an excessive rate of speed; that she failed to give any signal of her intention to turn into Taylor street, failed to blow her automobile horn or signal with the hand, and, in turning into Taylor from Fourth street, did not pass beyond the center of the intersection of the streets before making the turn, thereby "cutting the corner"; and that Mrs. Manlove discovered the peril of the boy in time to have avoided the collision with the means at hand, but did not do so. The defendants charged Lavelle with contributory negligence in failing to keep a proper lookout, in failing to see and heed Mrs. Manlove's hand signals; that he operated his bicycle in a careless manner, and at a negligent rate of speed, and went out of his way in an effort to run his wheel around in front of the automobile after the latter had passed beyond the center of the street intersection.

In response to special issues submitted to them the jury found that both Mrs. Manlove and Lavelle were operating their vehicles at a negligent rate of speed under the circumstances, but had their respective vehicles "under control," and that the negligent rate of speed in neither case was the proximate cause of the accident. The jury also found that Mrs. Manlove did not discover Lavelle's peril in time to avoid the accident with the means at hand, and that, although she did not sound her automobile horn at the time of turning into Taylor street, the failure to do so did not cause or contribute to the accident. The jury further found that Lavelle kept a proper lookout for other vehicles, did not pass any other cars at the intersection of the two streets mentioned, and did not attempt to run around in front of Mrs. Manlove's car. The court did not submit to the jury the issue of whether or not Mrs. Manlove kept a proper lookout for other vehicles, nor was the submission of such issue requested. The court also refused appellant's request for the submission of the issue of whether or not Mrs. Manlove signaled, with her hand, her intention to turn from Fourth street into Taylor.

It will be seen, then, that the questions of the rate of speed, and of the control of the vehicles, were eliminated from the case as to both parties, as were also the questions of discovered peril on the part of Mrs. Manlove and of contributory negligence of Lavelle. This left in the case but one submitted issue: Did Mrs. Manlove, in turning from Fourth street into Taylor, fail to pass beyond the center of the intersection before making the turn, and thereby "cut the corner"? On this issue the jury found against Mrs. Manlove, and further found that this movement on her part, made in this way, was the proximate cause of the accident.

Appellants urge with much force that the finding of the jury that Lavelle had his bicycle under control just before and at the time of the accident is in conflict with the further finding that Lavelle was operating his bicycle at a negligent rate of speed at that time. We do not understand that control and excessive speed are inconsistent in the operation of a vehicle. The jury evidently did not think so in this case, because they found that, while both Mrs. Manlove and Lavelle were moving too fast, they had their respective vehicles under control. A vehicle may be traveling at a highly excessive rate of speed, and yet be under such control as to proceed in safety in the normal course unless some unexpected danger suddenly intervenes which could not have reasonably been anticipated. Here, according to the jury's findings, Lavelle was traveling at a negligent rate of speed, but had his wheel under control, and, but for the fact that an approaching car suddenly and unexpectedly cut a corner and intercepted him, he would have pursued his course in safety. Appellants' fifth assignment of error raising this question is overruled, as is also the seventh assignment, for the same reasons.

In their eighth assignment of error appellants complain of the following instruction to the jury:

"In connection with the question relating to contributory negligence, I charge you that the plaintiff Thomas Lavelle is a minor, and the term `negligence,' as used in said terms, means the failure to exercise ordinary care; and ordinary care is that degree of care that a person of the same age,...