Martinez v. Pena
| Decision Date | 07 March 1940 |
| Docket Number | No. 3926.,3926. |
| Citation | 139 S.W.2d 337 |
| Parties | MARTINEZ et al. v. PENA. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; John F. Onion, Judge.
Action by Victoria Pena against Antonio Martinez and others for injuries sustained when struck by an automobile. From a judgment for the plaintiff, defendants appeal.
Affirmed.
Max H. Wier and Wier & Wier, all of San Antonio (Martin, Moore & Brewster, of Fort Worth, on the brief), for appellants.
Phil Collins and Otis Collins, both of San Antonio, for appellee.
For a statement of the nature and result of this suit we shall adopt that contained in the brief of appellants.
This suit was instituted by the appellee, Victoria Pena, in the 73rd District Court of Bexar County, Texas, being a suit for damages growing out of alleged personal injuries sustained on May 18, 1938, while appellee was crossing in the 1,000 block of West Houston Street, within the City of San Antonio, Bexar County, at a point other than at an intersection, and was struck by appellants' automobile.
For convenience, the parties will be hereinafter designated as they appeared in the trial court, appellants Antonio Martinez, Raymond Martinez, and Adam Gonzales, as defendants, and appellee, Victoria Pena, as plaintiff.
Plaintiff in her second amended original petition pleaded that she was walking from south to north across Houston Street, a public thoroughfare within the corporate limits of San Antonio, Texas, and at the same time and place the defendant Adam Gonzales was driving a truck in a westerly direction on said street; that the truck struck plaintiff, and that she sustained personal injuries; that the accident was caused by certain acts of negligence on the part of the defendant Adam Gonzales in the operation of the truck, in that he was traveling at an excessive rate of speed, failed to keep a proper lookout, was operating said truck without having same under proper control; that he discovered plaintiff in a position of peril and failed to use the means at hand to avoid hitting plaintiff; that all of such acts of negligence were the proximate cause of said accident and of the resulting injuries to plaintiff.
Defendants filed a general demurrer and general denial, and in addition alleged contributory negligence on the part of the plaintiff, in that she was crossing the street at a point other than a street intersection within the business district of the City of San Antonio, in violation of a municipal ordinance prohibiting same; that plaintiff failed to keep a proper lookout; that each of the foregoing acts of negligence on the part of plaintiff was the sole cause of the accident and of the resulting injuries to plaintiff; that the accident was unavoidable.
The case was submitted on special issues, and the jury found for the plaintiff on the issue of discovered peril; that defendant Adam Gonzales was operating his automobile in excess of twenty miles per hour; that he operated same at a negligent rate of speed; that he failed to have said automobile under proper control; that he failed to keep a proper lookout; that all of such acts were negligent, and were each a proximate cause of the accident and injuries to plaintiff.
All issues of contributory negligence submitted on behalf of the defendant were found in favor of plaintiff, including the issue as to proper lookout. The damages were assessed at the sum of $3,595. Defendants have duly perfected an appeal therefrom, and the case is here for review.
Defendants seek reversal on the ground of improper argument; that the evidence did not justify the submission of the issue as to discovered peril; the verdict is contrary to the evidence, in that as a matter of law plaintiff failed to keep a proper lookout for automobiles in crossing the street at the time she was injured; and that the court erred in rejecting the testimony tendered by appellants relative to the character of the district in which the accident occurred. The relevancy of this testimony is asserted to be that there was a city ordinance relative to the crossing of streets at points other than street crossings as to certain parts of San Antonio, and had same been admitted it would have tended to have shown that plaintiff was guilty of negligence per se.
Independent of the finding as to discovered peril, the judgment is amply supported by other findings of negligence. Hence it will be unnecessary to discuss the evidence relating to that issue, unless, as contended by the defendants, as a matter of law, the evidence conclusively shows that plaintiff was guilty of contributory negligence in the matter of keeping a lookout.
We believe that the evidence was sufficient to justify the submission of the issue of discovered peril and the finding of the jury thereon. It is deemed unnecessary to set out the testimony relative thereto at length. Suffice it to say, that the driver of the truck, Adam Gonzales, saw plaintiff when she was standing on or near the south curb of the street preparatory to crossing same in a northerly direction; he likewise testified as to keeping a lookout in the direction in which he was going. There is no evidence that there was anything to obstruct his view at the time she was in the act of proceeding across the street. From some of his testimony it would seem to indicate that he did see her. Plaintiff, according to the testimony of the defendant Adam Gonzales, was struck about five feet from the north curb of Houston Street. In his deposition this same witness testified that he saw the plaintiff from the time she stepped off to Houston Street from the curb until the truck struck her. There was evidence that she was running fast before the collision, also that she was walking fast; that the horn was sounded; that it was not sounded; conflicting evidence as to the speed of the truck. A slacking of the speed of the truck sooner would probably have prevented the accident. Under the evidence different deductions may be drawn as to when the driver realized the peril.
As to the question raised that the evidence is insufficient to sustain the finding that the plaintiff failed to keep a proper lookout, the burden was upon defendants to establish this issue. Plaintiff testifies that before attempting to cross Houston Street she looked in both directions, and while she was proceeding across the street up until the time she was struck she was looking from time to time in both directions. It is true, she stated she did not see the truck in question until immediately before it struck her. From her statement that she failed to see the truck until just before it struck her defendants seek to draw a conclusive presumption that she failed to keep a proper lookout. The surrounding facts cited to support this conclusion are that there was no obstruction to her view, and it was a clear, sunshiny day. We do not think this evidence sufficient to make it an uncontroverted fact that she failed to keep such a lookout. In any event, the driver of the truck had the same opportunity to observe plaintiff as plaintiff had to observe the approach of the truck. The jury found in her favor as to the issue of...
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