Miks v. Leath
| Decision Date | 02 April 1930 |
| Docket Number | No. 3382.,3382. |
| Citation | 26 S.W.2d 726 |
| Parties | MIKS v. LEATH. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; P. A. Martin, Judge.
Action by O. B. Leath against Ira Miks. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
W. B. Handley, of Dallas, for appellant.
Taylor, Muse & Taylor, of Wichita Falls, for appellee.
This is a suit by O. B. Leath to recover for personal injuries to plaintiff and for damages alleged to have resulted to his automobile from a collision between plaintiff's automobile and a motortruck being driven out of the defendant's place of business, across the sidewalk, by defendant's employee.
Plaintiff alleges: That during the months of December, 1928, and January, 1929, defendant owned and was conducting a feed store in the city of Wichita Falls, at No. 418 Indiana avenue, and three doors north of the corner of Fifth street and Indiana avenue, and that the defendant used a motortruck in connection with his business. That, while plaintiff was going into the city of Wichita Falls in a southerly direction, he had occasion to pass said feed store. That the feed store has a driveway which crosses the sidewalk, used in going into and out of the store, and vehicles, in leaving the store, are compelled to cross the sidewalk to reach the street. That Indiana avenue, which runs north and south, is paved on the east and west sides but has an unpaved strip in the center thereof for parking vehicles. That, during the latter part of December, 1928, while plaintiff was driving toward the business section of the city at a rate of speed not exceeding twenty miles per hour, and maintaining a cautious lookout, the defendant's truck dashed out of the building along the driveway, crossing the sidewalk into Indiana avenue at a rate of speed in excess of four miles per hour, without giving any warning of any character to vehicles driving along Indiana avenue going south. That plaintiff's car, at that time, was approximately ten to twenty feet from the driveway. That, as soon as he saw the truck, he threw on his brakes in attempting to avoid a collision, but, by reason of the careless manner in which the truck was being driven out of the building, without warning, and because it was exceeding four miles per hour, a collision occurred. The plaintiff endeavored to drive his car into the unpaved space in the center of Indiana avenue to avoid colliding with said truck, but the truck was going at right angles to the direction in which plaintiff was driving, and it was impossible for plaintiff to avoid the collision. That said truck struck plaintiff's car at or near the front with such violence that it knocked plaintiff's car into the unpaved area, where it stopped near the center of the street. That prior thereto the city of Wichita Falls had enacted an ordinance, No. 598, which was then in effect. Section 24 of said ordinance provides, in substance, that, it shall be unlawful for any motor vehicle to cross any sidewalk, or to approach the entrance of any alley, or emerge from any alley onto or across any sidewalk and into the street, at a greater rate of speed than four miles per hour, and without giving warning to other vehicles, without sounding a horn, bell, or other emergency alarms. That defendant's servants and employees operating said truck had not complied with section 73 of said ordinance, regulating the licenses of chauffeurs, and that the chauffeur driving said truck was not legally registered at the time, but was operating said vehicle for compensation. That defendants acted further in violation of section 77 of said ordinance, which requires chauffeurs of motor vehicles to give warning, and not to exceed four miles per hour when driving over a sidewalk, and declares that a violation thereof constitutes negligence. That the acts and omissions complained of and the negligence hereinabove set out were the proximate cause of plaintiff's damages and injuries.
Plaintiff further alleges that the acts complained of constituted negligence, and were the proximate cause of his injuries and damages, without regard to the provisions of the ordinance referred to. He sets out in detail the extent of the damages to his car, that, notwithstanding his efforts to have it repaired, it is still defective, and prays for judgment in the sum of $350 damages to the car. He further alleges that, because of the collision, he was violently thrown against the steering wheel and the left door of his automobile, and sets out in detail the kind, character, and extent of personal injuries suffered by him as a result thereof, and prays for damages to his person in the sum of $2,500.
The defendant answered by general demurrer and special exception, and attacks the validity of section 24 of said Ordinance No. 958 as being invalid and unconstitutional; that the same is in violation of and contravenes the law of the state of Texas, which fixes the speed of motor vehicles within incorporated cities, at not exceeding twenty miles per hour. He pleads contributory negligence on the part of plaintiff, in that the latter was exceeding the speed limits; that his automobile was not provided with adequate brakes kept in good working order; that he failed to exercise ordinary care, and was driving his automobile at a time and place and under circumstances and in such a manner as to render a collision unavoidable; that, at the time of the accident, plaintiff was violating certain sections of said ordinance by driving along the streets in an automobile, which was not provided with adequate brakes kept in good order; that he was driving recklessly and did not have his car under control, and, in so doing, was guilty of negligence, as defined by section 77-b of said ordinance, and of section 77-c thereof, which makes a collision, under said circumstances, prima facie evidence of negligence.
Special issues were submitted to the jury, in response to which they found that the driver of defendant's truck drove into the street at a speed of more than four miles per hour, without sounding his horn or giving any other warning signal; that such acts were the proximate cause of the collision; that, at the time of the accident, plaintiff was not driving his car at a greater rate of speed than twenty miles per hour; that the driver of the truck did not exercise ordinary care in driving his truck across the street into the parkway in the center thereof, and that his failure to do so was the proximate cause of the collision; that the collision was not an unavoidable accident; that plaintiff was not operating his automobile without having adequate brakes in good working order; that the plaintiff used ordinary care in operating his automobile at the time of the collision; that the rate of speed at which plaintiff was driving was not negligence.
The verdict fixes the extent of the injury to the car at $200, doctor's bills and medicine at $61, loss by reason of inability to labor at $75, and pain and suffering at $1,000.
From a judgment based upon the verdict, the defendant appeals.
By the first proposition, the defendant insists that, because plaintiff alleged that defendant's truck struck his automobile and because of the uncontroverted evidence which shows that plaintiff's automobile ran into and struck defendant's truck, the judgment is not supported by the pleading, proof, and the verdict and, by the second and third propositions it is insisted that, because the proof does not conform to the allegations, and for the further reason that plaintiff's automobile ran into the defendant's truck, as shown by the evidence, there exists a fatal variance between plaintiff's pleadings and proof. These matters are urged as presenting fundamental error.
It will be observed that the acts of negligence first set out by plaintiff are the driving by defendant's employee across the sidewalk at a greater rate of speed than four miles per hour and in failing to sound an alarm. The jury found for plaintiff upon both contentions. Plaintiff alleges that these wrongful acts resulted in a collision.
While there may be some statements in the pleadings and evidence to the effect that the truck struck plaintiff's car and vice versa, these are immaterial and do not allege or prove negligence, but rather they show the result of the negligence alleged. The collision was not alleged as an act of negligence, but to show the connection between the alleged negligence and the injuries, or, in other words, to show proximate cause. For that purpose it was proper to make such allegations. The evidence shows a collision and that both cars were moving when they collided. The collision is the material fact which shows the causal connection between the alleged negligence and the injury, and whether the truck came out of the driveway and ran into the automobile as the plaintiff was passing that point, or whether the truck had reached the pavement and plaintiff's automobile ran into or against it, is surplusage, since there was a collision in either event.
If a party proves the essential facts, he is not required to prove anything more, especially mere matters of surplusage, although they be alleged. Ellerd v. Murray (Tex. Civ. App.) 247 S. W. 631; Wise v. Boyd (Tex. Civ. App.) 267 S. W. 543; Shelton v. Lock (Tex. Civ. App.) 19 S.W.(2d) 124. What is here said disposes also of the seventh proposition.
The fourth and fifth propositions assail the validity of section 24 of the ordinance, insisting that the section is unreasonable and contravenes the state law relating to the same matters. Whether it is unreasonable is a question of law for the court. A-Loaf Baking Co. v. Pace (Tex. Civ. App.) 19 S.W.(2d) 459, 461. In that case Judge Jackson said: ...
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