Melton v. Manning

• Decision Date: 01 November 1919
• Docket Number: (No. 8235.)
• Citation: 216 S.W. 488
• Parties: MELTON et ux. v. MANNING.
• Court: Texas Court of Appeals

216 S.W. 488

MELTON et ux. v. MANNING.

(No. 8235.)

Court of Civil Appeals of Texas. Dallas.

November 1, 1919.

Rehearing Denied December 6, 1919.

Error from District Court, Hunt County; A. P. Dohoney, Judge.

Action by T. B. Melton and wife against Lon Manning. Judgment for defendant, and plaintiffs bring error. Affirmed.

B. Q. Evans, of Greenville, for plaintiffs in error.

Clark & Sweeton, of Greenville, for defendant in error.

RAINEY, C. J.

Plaintiff in error sued defendant in error to recover damages for personal injuries to his wife, and injuries to surrey and mules, alleging that—

"On the 24th day of August, 1916, while plaintiffs were coming along the public road north of Greenville, Tex., from their home, and were crossing a public bridge in and driving a pair of mules to a surrey, the defendant came meeting them in an automobile, and, instead of stopping until plaintiffs could get over and off the bridge, negligently and carelessly attempted to and did run on and over said bridge while plaintiffs were still on the bridge with their team and surrey, and negligently ran into their team and surrey, in which plaintiffs were riding, injuring the mules and surrey, causing injury to Mrs. Hattie Melton, as follows: Mrs. Hattie Melton was four months advanced in pregnancy; was very much frightened; was made very nervous, suffering great pain and mental anguish; was threatened with miscarriage; unable to work; suffered pain in her back, hips, and abdomen. The suffering continued until the 24th day of December, 1916, when she gave a premature birth to a baby. It was further alleged that since the birth of the baby Mrs. Hattie Melton had been an invalid suffering with great pain in her back, side, and abdomen, and in various portions of her body, suffering great mental anguish. That she is now a nervous wreck and will never be well again."

"Defendant, after pleading a general denial, alleged that he did not see plaintiffs on account of the dust, until they were on the bridge, and it was the duty of the plaintiffs to have discovered defendant's lights and not to have driven onto the bridge, which was too narrow for both to pass, and was therefore guilty of contributory negligence, and further that plaintiffs failed to exercise ordinary care to get relief or medical attention for his wife, which contributed to bring about the miscarriage, and was therefore guilty of contributory negligence."

A trial resulted in a verdict for defendant. The cause is before us on writ of error, and only two errors are assigned to the action of the court.

The first error assigned is:

"Because the verdict of the jury for the defendant is contrary to the law as given them in charge by the court and the great preponderance of the evidence in this cause; in that, the undisputed evidence of the plaintiffs themselves and the defendant, Lon Manning, and the witness J. N. Levins, and as shown from all the surroundings and circumstances, that the defendant, Lon Manning, negligently and without exercising ordinary care ran into and against the plaintiffs while crossing and on a bridge and injured plaintiff's surrey, harness, and mules, and caused great fright to plaintiff's wife and mental pain and anguish, and caused her to have discharge from the womb and threatened miscarriage at intervals until she gave birth to her child prematurely on the 24th day of December, 1916."

The verdict was a general one, as follows: "We, the jury, find for the defendant." We are of the opinion that the verdict is not contrary to the evidence. While a verdict for either party would have been sustained by the evidence, we think the evidence warranted a finding that the defendant was not guilty of negligence, and the same was true as to the plaintiff being guilty of contributory negligence. The evidence shows that the collision took place on a narrow bridge in the road, not wide enough for two vehicles to pass each other. Defendant went upon the bridge after plaintiff had gotten upon it, and defendant ran into his mules and surrey. It was at night, and, the road being traveled by a great number of vehicles, a great amount of dust had arisen and hung suspended over the ground, and was such that defendant's light was obscured by the dust, which prevented defendant from seeing but a little way in front of the auto, and when he struck the bridge he did not see plaintiff's surrey until he was so close he did not have time to stop before running into the surrey. Not being able to see the surrey at the time of going on the bridge and having the right to travel thereon, he cannot be charged with negligence in so doing; at least, it was a question for the jury to pass upon, and, it having done so, we find, in...