Nacklinger & Rayburn v. Prewitt

• Decision Date: 27 April 1927
• Docket Number: (No. 7087.)
• Citation: 294 S.W. 977
• Court: Texas Court of Appeals
• Parties: NACKLINGER & RAYBURN v. PREWITT et al.

Page 977

294 S.W. 977

NACKLINGER & RAYBURN v. PREWITT et al.

(No. 7087.)

Court of Civil Appeals of Texas. Austin.

April 27, 1927.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by Angie Prewitt against Nacklinger & Rayburn, who impleaded J. R. Jones and another. From an adverse judgment, defendants appeal. Affirmed.

W. C. Wofford, of Taylor, and Witt, Terrell & Witt, of Waco, for appellants.

Garrett, Brownlee & Goldsmith, of Austin, for appellee Prewitt.

Hart, Patterson & Hart, of Austin, for appellees R. F. Jones and J. R. Jones.

BAUGH, J.

Nacklinger & Rayburn were the owners and operators of a bus line between the cities of Austin and Taylor in 1925. On November 9, 1925, one of their cars, shortly after it left the bus station in Austin, and while going west on Thirty-Eighth street in said city, at the intersection of that street and Speedway, collided with another car running south on Speedway. The car of appellants was at the time carrying passengers for hire. Miss Angie Prewitt, one of the passengers, was injured and sued appellants for damages, alleging various negligent acts of their driver in operating the bus and causing the collision. Appellants impleaded R. F. Jones, the owner, and J. R. Jones, the driver, of the car which struck appellants' bus, alleging that their negligence caused the collision and the resulting injuries to Miss Prewitt. The case was submitted to a jury on special issues, in response to which they found that appellants' driver was guilty of negligence at such street crossing in failing to have his car under proper control; in failing to keep a proper outlook; and in driving at a speed in excess of 20 miles per hour, and that such negligence proximately caused plaintiff's injuries. They also found that the Joneses were not guilty of any negligence in the premises. Based upon such findings, the court rendered judgment in favor of plaintiff. Angie Prewitt, against appellants for $4,000, and that appellants take nothing against R. F. and J. R. Jones.

In their brief, appellants assert error under sixteen propositions. Under none of them, however, have they set out any statement from the record bearing upon these propositions, as required by rule 31 for the Courts of Civil Appeals. Appellees object to a consideration of said brief on that ground. It has been uniformly held that the appellate courts will not consider assignments of error not followed by a statement from the record as required by the rules. See article 1844, Vernon's Ann. Stats. 1925, note 65, and numerous cases there cited. Appellants have, however, set forth in some of their propositions and argument thereunder sufficient facts and references to the record to authorize us to consider them.

Under their fifth proposition, appellants complain of the trial court's refusal to submit the issue, on their cross-action, as to whether or not the failure of Jones to sound his horn was negligence proximately causing or contributing to plaintiff's injury. Appellants did plead such negligence of the Joneses in their cross-action, and the evidence showed that the horn on the Jones car was not sounded. But this cannot affect the rights of the plaintiff, Angie Prewitt. She sued appellants alone, charging them with negligence proximately causing her injuries. These issues were submitted to the jury, who found that appellants were guilty of negligence proximately causing her injuries. Under these pleadings and findings appellants were active wrongdoers, and not merely passive wrongdoers, as they assert in their cross-action against R. F. and J. R. Jones. Their liability to her because of their own negligence having been thus established, the court was not required to submit an issue under which they might claim contribution against J. R. and R. F. Jones. There are no rights of contribution between active wrongdoers or joint tort-feasors, and plaintiff's rights against appellants were not to be affected by such claims. G., H. & S. A. Ry. Co. v. Nass, 94 Tex. 255, 59 S. W. 870; Pullman Co. v. McGowan (Tex. Civ. App.) 210 S. W. 842; Rio Grande, etc., Ry. Co. v. Guzman (Tex. Civ. App.) 214 S. W. 629. This also disposes of appellants' seventh, eighth, and ninth propositions.

The next question raised by appellants under which...