Moncada v. Snyder

• Court: Texas Supreme Court
• Writing for the Court: Sharp
• Citation: Moncada v. Snyder, 152 S.W.2d 1077, 137 Tex. 112 (Tex. 1941)
• Decision Date: 25 June 1941
• Docket Number: No. 7640.,7640.
• Parties: MONCADA v. SNYDER.

152 S.W.2d 1077

MONCADA v. SNYDER.

No. 7640.

Supreme Court of Texas.

June 25, 1941.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by D. A. Snyder against Antonio Moncada and others for injuries sustained in an automobile collision. To review a judgment of the Court of Civil Appeals, 129 S.W.2d 817, which affirmed a judgment for plaintiff, named defendant brings error.

Affirmed.

Roy L. Arterbury and Ernest H. Folk, both of Houston, for plaintiff in error.

Allen, Helm & Jacobs, William States Jacobs, Jr., and Arthur P. Terrell, all of Houston, for defendant in error.

SHARP, Justice.

D. A. Snyder filed this suit against the St. Paul-Mercury Indemnity Company, Antonio Moncada, and Francisco Alanis, for personal injuries sustained in an automobile collision on the streets of Houston. The trial court sustained a plea in abatement filed by the St. Paul-Mercury Indemnity Company, and the case proceeded to trial before a jury against the other two defendants. The court entered judgment in favor of the defendant Francisco Alanis. Based upon the answers of the jury to special issues, the trial court entered judgment for D. A. Snyder against Antonio Moncada for the sum of $5,060. An appeal was taken to the Court of Civil Appeals at Galveston, and the judgment of the trial court was affirmed. 129 S.W.2d 817.

Plaintiff in error contends that D. A. Snyder was guilty of contributory negligence, as a matter of law, and that the Court of Civil Appeals erred in failing to so hold. The collision occurred at the corner of Fannin and Calumet streets in the City of Houston, neither of which was a stop street. Snyder was driving west on Calumet street, approaching Fannin street on Moncada's right, and entered the intersection ahead of Moncada, which gave Snyder the right of way. Before entering Fannin street Snyder reduced his speed to three or four miles an hour, changed gears, and looked both ways. He saw the top of Moncada's truck approaching at some distance from the intersection, but could not estimate its exact speed. Concluding that he had ample time to cross Fannin street in safety, Snyder drove ahead in second gear, entirely crossing his near side of Fannin street, which was Moncada's right-hand side of Fannin street. After Snyder had entirely crossed Moncada's right side of Fannin street, and as he was almost to the northwest corner, Moncada, who the testimony showed was drunk, and who was driving north on Fannin street, with ample room to drive straight ahead and pass behind Snyder in safety, suddenly veered to his left at a high rate of speed, driving onto his left-hand side of Fannin street and striking the left rear portion of Snyder's car just as it was about to clear the intersection entirely and throwing Snyder out and injuring him.

The jury found that Moncada was guilty of negligence in the following particulars: (1) That he was driving a truck at a speed in excess of twenty miles per hour; (2) that he was driving a truck at a speed which was dangerous under the circumstances; (3) that he failed to keep the truck under proper control; (4) that he was driving a truck on his left-hand side of Fannin street; (5) that he failed to keep a proper lookout for vehicles ahead of the truck which he was driving; and that each of said acts constituted negligence on the part of Moncada and was the proximate cause of Snyder's injuries.

The jury acquitted Snyder of negligence in driving his automobile across the street in front of the approaching truck driven by Moncada.

The pleadings and the evidence raised the issues submitted by the trial court to the jury. Under the state of this record, the trial court and the Court of Civil Appeals would not have been justified in holding, as a matter of law, that Snyder was guilty of contributory negligence. The question as to whether or not Snyder was guilty of negligence was an issue for the jury to determine. Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; Texas & N. O. Ry. Co. v. Crow, 121 Tex. 346, 48 S.W.2d 1106; Trochta v. Missouri, K. & T. R. Co., Tex. Com.App., 218 S.W. 1038; Galveston, H. & S. A. Ry. Co. v. Duty, Tex.Civ.App., 267 S.W. 744, affirmed Tex.Com.App., 277 S. W. 1057; Paris & G. N. R. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; Postal Tel. & Cable Co. v. Saper, Tex.Civ.App., 108 S.W.2d 259.

Plaintiff in error contends that the Court of Civil Appeals erred in holding that it was within the discretion of the trial court to allow the attorney for Snyder to make the following closing argument to the jury: "Why didn't that power that is back behind the defense of this case— some power—who it is we do not know— but the power that conducted the investigation, for the defense in this case—why didn't that power acquaint counsel for the defense of the whereabouts of those defendants, they didn't do it—but put Mr. Folk (counsel for defendant) in a very embarrassing situation of having to go on the stand and explain to the jury why he didn't know where the defendants were. That power that is behind the defense of this case, or somebody connected with the machinery of the defense, hasn't been fair."

Counsel for Moncada at this point objected to the argument in the following language: "If the court please, that argument is of such a nature that its effect cannot be withdrawn—he can't withdraw it."

Counsel for Snyder replied as follows: "I have nothing to withdraw; I say the power, whoever it may be, behind the defense in this case, hasn't been fair."

Counsel for Moncada contend that this argument injected the question that an insurance company was in the case.

It was alleged that the two Mexicans who were occupying the truck at the time of the collision were convicts on the Blue Ridge State Prison Farm. Each of the defendants filed a general denial, but neither of them was present at the trial. Counsel for Snyder contended that, in the face of such general denial, proof of the identity of the driver of the truck was necessary to establish Snyder's case. Likewise, it was contended that Snyder was entitled to prove any admissions of the two Mexicans against their interest, or to establish any presumptions arising from their failure to testify, that would tend to support his case.

Counsel for Snyder stated in open court that he would like to use the defendants as witnesses. The...