Northern Texas Traction Co. v. Weed

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: Northern Texas Traction Co. v. Weed, 300 S.W. 41 (Tex. 1927)
• Decision Date: 14 December 1927
• Docket Number: (No. 1029-4928.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: NORTHERN TEXAS TRACTION CO. v. WEED et al.

Page 41

300 S.W. 41

NORTHERN TEXAS TRACTION CO. v. WEED et al.

(No. 1029-4928.)^*

Commission of Appeals of Texas, Section A.

December 14, 1927.

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

Action by R. R. Weed, individually and as next friend of his minor daughter, Katherine Marguerite Weed, against the Northern Texas Traction Company. Judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals (297 S. W. 534), and defendant brings error. Judgments of Court of Civil Appeals and of district court reversed and cause remanded to district court.

Cantey, Hanger & McMahon, Alfred McKnight, and Warren Scarborough, all of Fort Worth, and Black & Graves, of Austin, for plaintiff in error.

McLean, Scott & Sayers and Geo. Thompson, Jr., all of Fort Worth, for defendants in error.

CRITZ, J.

This case was originally filed in the district court of Tarrant county, Tex., by R. R. Weed individually, and as next friend of his minor daughter, Katherine Marguerite Weed, against Northern Texas Traction Company, to recover damages on account of an automobile in which said Katherine Marguerite Weed was riding, and which she was driving, being struck by a street car, resulting in injuries to herself and said car. A trial in the district court by jury resulted in a verdict and judgment for the plaintiffs. The case was duly appealed to the Court of Civil Appeals for the Second District at Fort Worth, which court affirmed the judgment of the district court, Justice Dunklin dissenting, and is now before this court on writ of error granted on application of the traction company.

The issues of this case are stated in the opinion of the Court of Civil Appeals, 297 S. W. 534, and will not be repeated here except where necessary to understand our holding.

In its first assignment of error and propositions thereunder, plaintiff in error contends that the findings of the jury in response to special issues Nos. 4, 5, and 6 are in conflict with the findings made in response to special issues Nos. 12, 13, and 14. Such special issues and the answers thereto are as follows:

"4. Under all the facts and circumstances shown by the evidence, did the motorman in charge of defendant's north-bound street car, at the time and upon the occasion of the collision in question, exercise ordinary care to keep a lookout to discover such automobile as might be approaching defendant's east car tracks? Answer: No.

"5. * * *

"Was such failure, if any, negligence, if any, as that term is defined to you? Answer: Yes,

"6. * * *

"Was such negligence, if any, a proximate cause of the collision and the injuries in question? Answer: Yes."

"12. * * *

"Did the motorman operating the street car in question discover the perilous position, if any, of Katherine Marguerite Weed and the car she was driving? Answer: Yes.

"13. * * *

"Did the motorman operating the street car in question, after discovering, if he did, the perilous position, if any, of the said Katherine Marguerite Weed and said automobile, in the exercise of ordinary care consistent with the safety of said street car and its occupants, use all the means at hand to prevent the collision and injuries in question? Answer: No.

"14. * * *

"Was such failure, if any, the proximate cause of the collision and injuries in question? Answer: Yes."

The court, in his charge, defined the term "proximate cause" in the usual, approved manner, as follows:

"`Proximate cause,' as that term is used in this charge, means the moving and efficient cause, without which the injury in question would not have happened. An act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question, and one that ought to have been reasonably foreseen by a person of ordinary care and prudence, in the light of the attending circumstances. It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question, and but for which the said result would not have occurred."

Counsel for plaintiff in error very urgently and ably present the following propositions under the above assignment:

"First Proposition.

"The finding of the jury, in response to special issues Nos. 4, 5, and 6, to the effect that appellant's motorman negligently failed to keep a lookout to discover the automobile, and that such failure was the proximate cause of the accident, is clearly in conflict with the findings of the jury, in response to special issues Nos. 12, 13, and 14, to the effect that the motorman discovered the perilous position of the appellee in time to prevent the collision, by the exercise of ordinary care in the use of the means at hand.

"Second Proposition.

"If the failure to keep a lookout was the proximate cause of the accident, then it is necessarily true that there was no actual discovery of appellee's perilous position in time to avoid the injury, by the exercise of ordinary care in the use of the means at hand, for, if the failure to keep such lookout was `the moving and efficient cause, without which the injury in question would not have happened' (quoting from the court's definition of `proximate cause'), then there was no discovery of appellee's peril at a time when, by the exercise of ordinary care in the use of all the means at hand, the collision could have been prevented.

"Third Proposition.

"It would be legally impossible in any case for the uncontradicted evidence to show that the defendant's original negligence in failing to keep a proper lookout was the proximate cause of the accident and also that the defendant's actual discovery of plaintiff's peril and subsequent failure to exercise proper care was the proximate cause of the accident. These theories are so inconsistent that it would be legally impossible that both of them should be established at the same time by the uncontradicted evidence. And for the same reason they are so inconsistent that they cannot be established at the same time by the verdict of a jury."

It is the settled law of this state that the plaintiff has the right to plead, prove, and have submitted to the jury inconsistent theories or grounds of recovery, but he is not entitled to a judgment rendered on inconsistent or conflicting findings, and where the verdict of the jury on material issues is conflicting, or where the findings of the jury are destructive of each other, there is no foundation for the rendition of a judgment and it cannot stand. Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Williams v. Zang (Tex. Com. App.) 279 S. W. 816; and First National Bank v. Rush (Tex. Com. App.) 246 S. W. 349.

If the findings of the jury in answer to issues 4, 5, and 6 are in conflict with issues 12, 13, and 14, then the result is that the findings as to the issue of primary negligence have conflicted with and destroyed the findings on the issue of discovered peril, and vice versa.

A careful reading of the findings in the light of the facts and pleadings will disclose that there is no conflict in the findings of the jury on these issues. If the precautions necessary to avoid the injury were the same under both issues, then the findings of the jury that the motorman in charge of the street car failed to keep a lookout and that such failure was negligence, and was the proximate cause of the collision and injury complained of, and the findings that said motorman discovered the perilous position of Katherine Marguerite Weed, and after such discovery failed to use all means at hand to prevent the collision and injury complained of, and that such failure was the proximate cause of said collision and the injury complained of, would be conflicting, and destructive of each other; but if, on the other hand, different precautions were necessary, under the two issues to prevent the collision and injury complained of, then there is no conflict. Measured by this rule, there was no conflict in the findings. Had the motorman, at the proper time, and before he actually discovered the perilous position of Katherine Marguerite Weed, kept a proper lookout, he might have discovered that she was about to drive her automobile into a position of danger, and by sounding the gong, or by the use of other means at hand at that time, have given her warning, and thus prevented her from going on to the track or into a position of danger before she did so. Certainly a finding to this effect would not destroy or conflict with a finding that later on after she was in danger he discovered it and failed to use all the means at hand to prevent the collision and resultant injury. The proximate cause of an injury need not be the sole cause, but it must be a concurring cause which contributed...