Norris Bros. v. Mattinson

• Decision Date: 22 March 1940
• Docket Number: No. 14054.,14054.
• Parties: NORRIS BROS., Inc., v. MATTINSON.
• Court: Texas Court of Appeals

145 S.W.2d 204

NORRIS BROS., Inc., v. MATTINSON.

No. 14054.

Court of Civil Appeals of Texas. Fort Worth.

March 22, 1940.

Rehearing Denied December 13, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Action by J. A. Mattinson against Norris Brothers, Inc., for damages growing out of an automobile collision. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Fay W. Prescott, Cantey, Hanger, McMahon, McKnight & Johnson, and J. A. Gooch, all of Fort Worth, for appellant.

Hamlin Smithdeal, of Dallas, and Clark & Stegall, of Fort Worth, for appellee.

SPEER, Justice.

Plaintiff J. A. Mattinson sued defendant Norris Bros., Inc., for damages growing out of an automobile collision in which plaintiff claimed he was struck and injured by a car driven by the agent of defendant, while in the discharge of his employment.

The various acts of negligence charged to the driver and those claimed by defendant to be contributory negligence by plaintiff proximately causing the injury are disclosed by the issues submitted to the jury.

The trial court in his charge defined "ordinary care", "negligence", "proximate cause", "proper lookout", "unavoidable accident" and "preponderance of the evidence". The jury found, (1) the collision was not an unavoidable accident, (2) immediately prior to the collision, Mackey (defendant's alleged agent) was operating his car at a greater rate of speed than 20 miles per hour, and that this was a proximate cause of the collision, (3) Mackey did not sound his horn immediately prior to the collision, and this was negligence and a proximate cause, (5) Mackey did not keep a proper lookout, his failure was negligence and a proximate cause, (7) Mackey did not discover plaintiff's perilous position in time to have avoided the collision by the exercise of ordinary care, (9) plaintiff did not fail to keep a proper lookout, (11) plaintiff did not dash out into the street suddenly, (14) plaintiff did not attempt to cross the street at a place other than at the end of a block designated for pedestrian traffic, (16) damages were assessed in favor of plaintiff for $15,612. Upon motion of plaintiff offering to remit all amounts in excess of $15,000, judgment was entered in his favor for that amount. Motion by defendant for new trial was overruled and it has perfected this appeal.

Defendant's first and second propositions are to the effect that the court should have instructed a verdict in its favor for the reason the evidence shows conclusively that plaintiff was guilty of negligence as a matter of law, which proximately caused his injury, in attempting to cross the street at a time when he had seen an automobile 400 feet away coming in his direction, and not having looked again in the direction of the on-coming car immediately prior to the time he was struck.

It is contended that in a former appeal of this case (Norris Bros., Inc. v. Mattinson, 118 S.W.2d 460) this court indicated that plaintiff was shown to have been guilty of negligence, as a matter of law, which proximately caused his injuries, in attempting to cross the street under the circumstances presented by the record of that trial.

Obviously this appeal will be determined by the evidence adduced upon the trial from which the appeal was prosecuted, and will not be determined by the record of the former appeal. The evidence in the record before us is decidedly different in many respects from what it was upon the former trial. A general summary of the evidence referable to plaintiff's acts immediately before he attempted to cross Hemphill Street to board a north bound bus, seems to be that he was standing on the curb at the junction of the west side of Hemphill and the south side of Fogg Streets, and saw the bus coming from the south; the bus was on the east side of Hemphill and he would have to cross that street to catch it; he signaled the driver and the bus stopped; he looked for the passing traffic; he saw two cars, one going north and one going south, passing immediately in front of him, waited for them to pass and then saw another car 400 feet away, coming south on Hemphill Street; he then attempted to cross the street to the bus and had gone about five steps or 15 feet out into the street where he was struck by the car which he had seen 400 feet to the north before starting across. He did not look north or south after starting across the street, but looked ahead of him toward the bus; persons who saw the accident and observed the situation immediately thereafter said plaintiff was attempting to cross at the corner of the block customarily used by pedestrians; although that street is considered as one carrying heavy traffic, there is no evidence that there was any other car in motion in that vicinity, than the two previously mentioned, the bus and the car that struck plaintiff. He was struck by a car belonging to Mr. Mackey, the alleged agent of defendant; the automobile drug or carried him about 50 feet before coming to a stop; the markings on the pavement made by the skidding tires began about 30 feet south of where plaintiff was struck and extended 20 or 21 feet; no signal was given by the driver; he said he did not see the plaintiff until too close to signal or miss him; other witnesses said the car did not slow down or change its course before the collision; that at the rate of speed plaintiff was walking, it was approximately four and a half seconds from the time he left the curb until he was struck; expert testimony was offered, showing that from a test made by a stop watch, a car traveling 20 miles per hour would require thirteen and two-fifths seconds to cover the distance from where defendant's car was when plaintiff started across the street to the point of the accident; that ten seconds would be required to cover the same distance while traveling 30 miles per hour; there was no evidence tending to show that plaintiff knew or believed that the car was traveling at a rate of speed in violation of law.

Assuredly the law requires of each and every person traveling upon or across public thoroughfares to keep a proper lookout for his own safety. That proper lookout is such one as a person of ordinary care would keep under the same or similar circumstances. Stehling v. Johnston, Tex.Civ.App., 32 S.W.2d 696, writ refused. It is equally well settled that more care should be exercised under some conditions than others; to put it another way, what would be a proper lookout under one situation would not be under another. It does not present a fair test to say that if plaintiff had not attempted to cross the street when defendant's car was in sight 400 feet away, he would not have been hit by it; that is, if he had not attempted to cross the street he would not have been injured by that car. Nor is the test of care to be determined by a mathematical calculation in distances and seconds or even split seconds, but rather by what an ordinarily prudent person would do under similar circumstances. This has been many times determined by our courts to be one of fact for the jury. These fact issues may arise when under the circumstances a party may reasonably believe that a car, when seen, is at such a distance that he may safely cross its path. American Grocery Co. v. Abraham, Tex.Civ.App., 94 S.W.2d 1231, writ dismissed. If a pedestrian looks in all directions from which he should anticipate an approaching danger and sees none which a reasonably prudent person would fear, he may proceed, even though he has seen a vehicle which he had reason to believe was traveling at a lawful rate of speed, and that it would not molest him. Southern Motor Lines v. Creamer, Tex.Civ.App., 113 S.W.2d 624, writ dismissed; Galveston, H. & S. A. Ry. Co. v. Mallott, Tex.Civ.App., 6 S.W.2d 432, writ dismissed; Dollar Dodge Rent Service, Inc. v. McEwen, Tex.Civ.App., 273 S.W. 889, writ dismissed.

It is true that one having what is commonly known as the right of way at a given point may not rely solely upon that fact to the exclusion of all other duties enjoined upon him to exercise ordinary care for his own safety; but one situated as was plaintiff in the instant case did have the right of way at that point as against defendant; plaintiff was going east and Mackey was driving south and approaching plaintiff's left; plaintiff knew that it was the duty of defendant's driver to concede him the right of way, and could assume that the driver would slow down or pass behind him; the evidence shows that there was ample space for the defendant's car to have passed behind plaintiff, if the driver had chosen to do so. Schuhmacher Co. v. Bahn, Tex.Civ.App., 78 S.W.2d 205, writ dismissed; Moss v. Koetter, Tex.Civ.App., 249 S.W. 259, writ refused. However, we do not mean to be understood as holding that because one has the right of way that he is thereby relieved of further responsibility to continue to exercise ordinary care to keep a lookout for danger; but we have mentioned the foregoing conditions simply to illustrate the degree of care that an ordinarily prudent person would exercise under the circumstances; this may further be illustrated by two extreme conditions, one in crowded traffic and the other on a rural highway where one would travel perhaps for a mile or more and not see a vehicle. It has been held, and correctly so we think, that although a party had, in law, the right of way, yet he could utterly fail to keep a proper lookout and as a result be injured, and such a failure on his part would be negligence. Stehling v. Johnston, supra.

There was ample testimony offered upon the trial to raise the issue of whether or not plaintiff was guilty of negligence proximately causing the collision at the time he received his injuries. The jury resolved the issue in his favor. In such circumstances, it is the duty of this court to uphold the jury finding if to consider all testimony tending to...