Martinez v. Martinez

• Decision Date: 16 June 1977
• Docket Number: No. 1012,1012
• Citation: 553 S.W.2d 211
• Parties: Vincent P. MARTINEZ, Appellant, v. Eduardo L. MARTINEZ, Appellee.
• Court: Texas Court of Appeals

Page 211

553 S.W.2d 211

Vincent P. MARTINEZ, Appellant, v. Eduardo L. MARTINEZ, Appellee.

No. 1012.

Court of Civil Appeals of Texas, Tyler.

June 16, 1977.

Rehearing Denied July 14, 1977.

John Ken Sharber, Maebius & Duncan, Inc., San Antonio, for appellant.

Peter N. Plumb, Earl F. Levis, San Antonio, Michael M. deShetler, Allison & Garcia, Corpus Christi, for appellee.

McKAY, Justice.

This is an appeal from an instructed verdict granted in a suit brought by appellant seeking money damages for the loss of sight in his left eye alleged to have been sustained as a result of the negligence of appellee by discharging a "bottle rocket" which struck appellant. This act was alleged to be negligence per se as a violation of Section 26-15 of the City Code of San Antonio prohibiting the use of fireworks without a permit. ¹ Appellee answered alleging that several acts of appellant constituted contributory negligence and that at the time of the accident appellant was a part of a civil conspiracy to violate the above mentioned ordinance; therefore, appellant would be barred from recovery. At the close of the plaintiff's evidence the trial court instructed a verdict in favor of appellee and rendered judgment that appellant take nothing.

Appellant brings four points of error which complain that the trial court erred in granting appellee's motion for instructed verdict because the evidence (1) affirmatively raised issues of fact which showed a prima facie case of negligence on the part of the appellee; (2) affirmatively raised issues of fact as to whether the appellee's act of igniting the bottle rocket was the proximate cause of the appellant's injury; (3) did not establish as a matter of law that appellant's negligence barred him from recovery; and (4) affirmatively raised issues of fact as to whether or not appellee breached a duty owed to appellant. Appellee by his three counterpoints contends that (1) appellant failed to make a prima facie case of appellee's negligence or that appellant's contributory negligence was a proximate cause of appellant's injury; (2) as a matter of law the appellee breached no duty owed by him to the appellant; and (3) as a matter of law the appellant is barred from recovery for the alleged negligence of the appellee due to the fact that he was engaged in a "civil conspiracy" as that term is understood in law and "was otherwise himself engaged in an illegal activity".

In considering whether an instructed verdict was proper an appellate court must view the evidence of the complaining party in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). In order to sustain the action of a trial court in granting a directed verdict, it must be determined that there is no evidence of probative value upon which the jury could have found on the issue in question or that the evidence conclusively establishes the opposite of the jury finding. Douglass v. Panama, Inc., supra; Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.R. 361, 363. With these principles in mind we will examine the evidence.

On the evening of December 31, 1974, appellee held a New Year's Eve party at his home located at 1322 Texas Avenue, San Antonio, Texas. Invited by "word of mouth" were a number of friends and relatives, including his brother, the appellant. Several of the participants provided food and beverages, some alcoholic, the appellee supplying the fireworks. At or about 11:30 p. m. some of the persons attending the party began lighting fireworks to celebrate the arrival of the new year. Appellant's participation in this activity was limited to popping firecrackers and lighting sparklers. At or about 12:00 midnight the appellee began shooting what are commonly known as "bottle rockets" in his back yard. A "bottle rocket" is an explosive attached to a narrow stick which is propelled through the air upon the explosive being ignited. It acquired its name because it is usually launched by placing the stick in a bottle. By 12:00 midnight appellant had ceased his participation and appellee was the only one engaging in the fireworks activity. At or about 12:15 a. m. on January 1, 1975, appellant, while standing and talking with his wife in the back yard approximately 20 to 30 feet away from where appellee was shooting bottle rockets, was struck in the left eye by a bottle rocket. The bottle rocket which struck appellant had been placed into a beer bottle and ignited by the appellee. Appellee testified that he gave no warning to appellant that he was about to light the rocket in question. Appellant suffered the loss of sight in his left eye as a result of the accident.

Prior to the accident appellee had fired "over a dozen" of the bottle rockets, either out of a bottle or his hand, or by lighting and dropping the rockets on the ground. Appellee testified that approximately 50 percent of these had malfunctioned, either failing to ignite or failing to reach the maximum altitude. One witness, Homer Rodriguez, testified, "They either didn't go off or they took off and instead of going straight up they just spirled (sic) and went off cockeyed." As to the rocket that struck appellant, appellee testified, " . . . it went up, and then somewhere around six feet it temporarily, the fire stopped, the propulsion device, and then it went up and started to fall, and as it fell it reignited and took a parallel course to the ground in the direction of my brother," upon which course it struck appellant. The evidence showed that several persons including appellant had observed appellee's activity and that no one had objected to such as being dangerous. Appellant acknowledged that appellee's acts were unintentional and that his injury was due to a "freak accident".

In considering this evidence we agree with appellant's contention that the evidence raised issues of fact as to the negligence of the appellee and whether it was a proximate cause of appellant's injury. Where the purpose of a valid municipal ordinance is to afford protection against the hazard involved in a particular case, the violation of such, absent some evidence of a legally substantiated excuse, constitutes negligence per se. Parrott v. Garcia, 436 S.W.2d 897, 899, 900 (Tex.1969); Alpine Tel. Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830, 833 (Tex.1944); Harris v. LaQuinta-Redbird Joint Venture, 522 S.W.2d 232, 234 (Tex.Civ.App., Texarkana 1975, writ ref'd n.r.e.). The ordinance in question, outlawing the use of fireworks within the City of San Antonio without a permit, clearly was meant to afford protection from personal injury for persons situated as appellant. The evidence raises fact issues that appellee violated such ordinance and that such violation was a proximate cause of appellant's injury. Appellee makes no contention that such violation was excusable. We further agree with appellant that the evidence did not establish as a matter of law that his own negligence barred him from recovery. Although it was shown that at an earlier point in the evening appellant had participated in the fireworks activity, it was not shown (1) that he was participating in such at the time of the accident, or (2) that his own illegal acts would have been a concurring cause of such injuries.

Appellee, however, first contends that the "malfunctioning" of the bottle rocket in question was a new and intervening cause, not foreseeable to appellee, of appellant's injury which destroyed the causal connection between the negligent act of the appellee and appellant's injury, thereby becoming itself the immediate cause of the injury. He contends that since the injury was unintentional, it was, therefore, not...