Montgomery v. Houston Electric Co., 1838-7547.

Decision Date06 November 1940
Docket NumberNo. 1838-7547.,1838-7547.
Citation144 S.W.2d 251
PartiesMONTGOMERY et al. v. HOUSTON ELECTRIC CO.
CourtTexas Supreme Court

This suit was filed in the 80th District Court of Harris County by M. M. Montgomery, Jr., and his mother against Houston Electric Company, to recover damages for personal injuries sustained by M. M. Montgomery, Jr., in a collision with said Montgomery and a passenger bus operated by the Electric Company in the City of Houston. A jury trial resulted in a verdict on which judgment was rendered in favor of Montgomery and against the Electric Company. The Electric Company appealed to the Court of Civil Appeals at Galveston and the judgment was reversed and the cause remanded for another trial. Houston Electric Co. v. Montgomery et al., 123 S. W.2d 943. Writ of error was granted by this court.

The Honorable Court of Civil Appeals entertained the opinion that findngs in the verdict of the jury were in conflict and mutually destructive.

The trial pleadings of the parties tendered the issues of primary negligence, discovered peril and contributory negligence. The findings of the jury said to be in conflict by the Court of Civil Appeals are as follows:

"(15) Do you find from a preponderance of the evidence that prior to the collision M. M. Montgomery, Jr., was in a perilous position?

"(16) Do you find from a preponderance of the evidence that the bus driver discovered that M. M. Montgomery, Jr., was in a perilous position?

"(17) Do you find from a preponderance of the evidence that the bus driver discovered the peril of M. M. Montgomery, Jr., within such time and distance as that by the exercise of ordinary care in the use of all the means at his command, consistent with the safety of himself, his passengers and his bus, he could have avoided the collision?

"(18) Do you find from a preponderance of the evidence that the failure of the bus driver to exercise all of such means was negligence as that term is herein defined?

"(19) Do you find from a preponderance of the evidence that such negligence was a proximate cause of the injuries, if any, sustained by M. M. Montgomery, Jr.?"

Each of these issues was answered "We do."

Special Issue No. 22, "Do you find from a preponderance of the evidence that immediately prior to the collision in question the minor plaintiff, M. M. Montgomery, Jr., suddenly turned his bicycle to his right?

* * * * *

Special Issue No. 31. "Do you find from a preponderance of the evidence that M. M. Montgomery, Jr., failed to give any warning of his intention to make such turn, before making the turn?"

Each of these issues was likewise answered "We do".

As we understand, the holding of the Honorable Court of Civil Appeals is that Special Issues Nos. 15 to 19, inclusive, are antagonistic to Issues Nos. 22 and 31 in point of time, i. e., that there was time for the bus driver to have prevented the collision (which is included in the former group of issues) and that there was not such time (which is said to be included in Special Issues Nos. 22 and 31).

The finding of the jury that the boy, immediately prior to the collision, suddenly turned his bicycle to his right and the finding that the boy at such time failed to give any warning of his intention to make such turn do not conflict with the finding that the bus driver discovered the perilous position of the boy within such time that,...

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13 cases
  • Wright v. Carey
    • United States
    • Texas Court of Appeals
    • March 5, 1943
    ...Traction Co., 111 Tex. 361, 234 S.W. 663; Sugarland Industries v. Daily, 135 Tex. 532, 536, 143 S.W.2d 931; Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251; Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 149, 70 S.W.2d 397; Galveston, H. & S. A. R. Co. v. Zantzinger, 92 T......
  • Texas Employers' Ins. Ass'n v. Lightfoot
    • United States
    • Texas Supreme Court
    • April 1, 1942
    ...Jordan v. Morten Investment Co., 127 Tex. 37, 90 S.W.2d 241; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123; Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251. The judgment of the Court of Civil Appeals is reformed so as to eliminate therefrom the instruction to the trial cou......
  • Younger Bros. v. Ross
    • United States
    • Texas Court of Appeals
    • May 1, 1941
    ...irrespective not only of all issues of primary negligence, but also of contributory negligence upon the part of Ross; Montgomery v. Houston Elec. Co., 135 Tex. 538, 144 S. W.2d 251; St. Louis, B. & M. Ry. Co. v. Cole, Tex.Com.App., 14 S.W.2d 1024; Dallas Railway & Terminal v. Bankston, Tex.......
  • Abalos v. Oil Development Co. of Texas
    • United States
    • Texas Court of Appeals
    • July 7, 1975
    ...Abalos' contributory negligence or primary negligence of the Ruthco crew are not determinative in this appeal. Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251 (Tex.Com.App. Sec. B 1940, opinion adopted by Supreme Court); Parks v. Airline Motor Coaches, Inc ., supra. The rec......
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