Northern Texas Traction Co. v. Bryan

• Decision Date: 02 July 1927
• Docket Number: (No. 11651.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Northern Texas Traction Co. v. Bryan, 299 S.W. 325 (Tex. App. 1927)
• Parties: NORTHERN TEXAS TRACTION CO. v. BRYAN.
• Court: Texas Court of Appeals

299 S.W. 325

NORTHERN TEXAS TRACTION CO. v. BRYAN.

(No. 11651.)^*

Court of Civil Appeals of Texas. Fort Worth.

July 2, 1927.

Rehearing Denied October 1, 1927.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by Betty Bryan against the Northern Texas Traction Company. Judgment for plaintiff, and defendant appealed to Court of Civil Appeals, which certified questions to Commission of Appeals. Affirmed in conformity to answers to certified questions. 294 S. W. 527.

Cantey, Hanger & McMahon, Alfred McKnight, W. D. Smith, and E. A. McCord, all of Fort Worth, for appellant.

Jones, Buck & Gibson, of Fort Worth, for appellee.

CONNER, C. J.

This suit was instituted in the Ninety-Sixth judicial district court of Tarrant county by appellee, Betty Bryan, against the appellant, Northern Texas Traction Company, to recover damages for personal injuries alleged by her to have been sustained on December 26, 1923, at or about 8 o'clock p. m., at which time plaintiff was struck by one of the defendant's street cars while plaintiff was attempting to cross the street at the intersection of Main and Sixth streets in the city of Fort Worth.

Plaintiff alleged, in substance, that on said date she had started across from the east side of Main street to the west side, and along the north side of Sixth street, and that, while upon and near the defendant's track, she was struck by one of the defendant's street cars, and thrown against and under the same in such manner as to cause her certain personal injuries, which are set forth at great length in her petition.

The grounds of negligence alleged by the plaintiff were, in substance, that the motorman in charge of defendant's street car operated the same at a high, reckless, and excessive rate of speed; that he failed to exercise ordinary care to keep a reasonable lookout; that he failed to give any signal or warning of the approach of the street car on and over the intersection of Sixth and Main streets, in violation of the ordinances of the city of Fort Worth; that he failed to ring a bell or sound a warning of any kind, as the street car approached the plaintiff on the occasion in question; that defendant failed to provide the street car with brakes in good working condition, for checking the speed thereof; that defendant failed to provide and maintain a guard or rail at and near the front of said street car to prevent persons struck from being thrown under the car; and that the operator in charge of said street car failed to use the means at hand to stop the car after he discovered the peril of the plaintiff, and that the defendant was guilty of negligence in having only one employee in charge of said car.

Defendant, after a general denial, alleged contributory negligence upon the part of the plaintiff in violating title 7, c. 1, § 44, of the Revised Ordinances of the city of Fort Worth, requiring pedestrians to cross at right angles with the curb line, alleging that the plaintiff was not crossing at right angles on the occasion in question, but was guilty of what is ordinarily known as "jay walking;" that plaintiff was further guilty of negligence in attempting to cross Main street north of the intersection of Sixth and Main streets, in violation of chapter 1, title 7, § 48, of the Revised Ordinances of the city of Fort Worth, providing that no person shall cross any street other than at the intersection of two streets; and that the plaintiff was further guilty of negligence in stepping suddenly from in front of a north-bound automobile and into the northeast corner of the street car; and that she was further guilty of negligence in failing to look and listen for the approach of a street car before stepping on to defendant's track, and before attempting to cross said track.

The case was tried before a jury, and the court, upon the verdict of the jury in answer to special issues submitted to them, and which will be hereinafter set out, entered a judgment in favor of the plaintiff for the sum of $20,500. From this judgment the defendant has duly prosecuted this appeal.

The record discloses that the defendant upon the trial formally presented 17 special exceptions to plaintiff's pleadings, a motion to discharge the jury panel, 43 exceptions to the court's charge and issues submitted, requested the presentation of 29 special instructions, 14 requested issues, reserved 45 bills of exceptions a motion to withdraw certain evidence, extended original and amended motions for new trial, and other motions and proceedings upon which the case is presented in this court upon 78 propositions based upon 96 assignments of error predicated upon the court's rulings on the various proceedings above mentioned, in a brief containing 471 pages, citing numerous authorities. It is thus manifest that we are presented with the difficulty of disposing of all of the questions presented in an opinion of permissible length. We therefore feel forced to adopt the course of presenting our conclusions upon numerous questions presented in a very general way, as unsatisfactory as that may be.

The charge of the court, together with the issues submitted and the answers of the jury thereon, are as follows:

"Gentlemen of the Jury: This case is submitted to you upon special issues, each of which you will answer only by the unanimous consent of all the jury. To aid you I give you the following definitions:

"Negligence is a failure to use ordinary care.

"Ordinary care is such care as a person of ordinary prudence would exercise under the same or similar circumstances.

"Contributory negligence is such an act or omission amounting to the want of ordinary care on the part of plaintiff, as that concurring or co-operating with negligence on the part of the defendant is the proximate cause or the proximately contributing cause of the injury complained of.

"Proximate cause is that cause which, in a natural and continuous sequence, unbroken by any new independent cause, produces the event complained of, and without which that event would not have occurred, and to be the proximate cause of an event it must have been reasonably anticipated by a person of ordinary prudence that the injury or some similar injury would occur. There may be more than one proximate cause of an event.

"An unavoidable accident is one that is not due to the negligence of the party sought to be charged therewith, and is of such a nature that it could not be reasonably anticipated by the parties thereto.

"Now, bearing in mind the foregoing instructions, please answer:

"(1) Was the operation of defendant's car at the rate of speed at which same was going on the occasion on which plaintiff was struck by said car negligence as that term is defined to you? Ans. Yes.

"(2) If you answer No. 1 `No,' do not answer No. 2, but, if you answer it `Yes,' then answer: Was said operation of said car at said rate of speed a proximate cause, as that term is defined to you, of said car striking plaintiff? Ans. Yes.

"(3) On the occasion at which defendant's car struck plaintiff, was the operator of defendant's car keeping such a lookout as would have been kept by a person of ordinary prudence to avoid injuring pedestrians situated as was the plaintiff? Ans. No.

"(4) If you have answered No. 3 `Yes,' do not answer No. 4, but, if you have answered it `No,' then answer: Was the failure to keep such lookout, if any such failure you have found, a proximate cause of the car striking plaintiff? Ans. Yes.

"(5) On the occasion at which defendant's car struck plaintiff, did defendant's operator of said car use ordinary care to sound his gong in such a manner as to give a sufficient warning to pedestrians of its approach? Ans. No.

"(6) If you have answered No. 5 `Yes,' do not answer No. 6, but, if you have answered it `No,' then answer: Was such failure, if any you have found in answering No. 5, a proximate cause, as that term is defined to you, of the defendant's car striking plaintiff? Ans. Yes.

"(7) As soon as the defendant's car operator discovered, if he did, the perilous position of plaintiff, if any such there was, did said operator use ordinary care to use all means at his command to avoid injuring plaintiff, as could be reasonably exercised consistent with his own safety and those on his car? Ans. No.

"(8) If you have answered No. 7 `Yes,' do not answer No. 8, but, if you have answered it `No,' then answer: Was the failure to use such means, if any such failure you have found in answering No. 7, a proximate cause, as that term is defined to you, of defendant's car striking plaintiff? Ans. Yes.

"(9) At the time defendant's car struck plaintiff, was plaintiff crossing Main street at right angles with the curb line of said Main street and at the intersection of Sixth and Main at the usual place where the pedestrians cross the same? Ans. Yes.

"(10) If you have answered No. 9 `Yes,' do not answer No. 10, but, if you answered it `No,' then answer: Was the plaintiff crossing Main street at the place at which she did cross same a proximate cause or a proximately contributing cause of her being struck by defendant's car? Ans. Yes.

"(11) In crossing Main street, was plaintiff keeping such a lookout for approaching street cars as a person of ordinary prudence would have kept under similar circumstances? Ans. Yes.

"(12) If you have answered No. 11 `Yes,' do not answer No. 12, but, if you have answered it `No,' then answer: Was plaintiff's failure to keep such lookout, if any such failure you have found in answering No. 11, a proximate cause, or a proximately contributing cause, of plaintiff being struck by defendant's car? Ans. ____.

"(13) In crossing Main street on the occasion when plaintiff was struck, was plaintiff using such diligence in listening for approaching street cars as a person of ordinary prudence would have used under similar circumstances? Ans. Yes.

"(14) If you have answered No. 13 `Yes,'...