Northern Texas Traction Co. v. Woodall

• Decision Date: 05 March 1927
• Docket Number: (No. 11685.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 294 S.W. 873
• Parties: NORTHERN TEXAS TRACTION CO. v. WOODALL et al.
• Court: Texas Court of Appeals

294 S.W. 873

NORTHERN TEXAS TRACTION CO. v. WOODALL et al.

(No. 11685.)^*

Court of Civil Appeals of Texas. Fort Worth.

March 5, 1927.

Rehearing Denied April 9, 1927.

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

Action by W. R. Woodall against the Northern Texas Traction Company and another. Judgment for plaintiff against defendant named, and defendant named appeals. Affirmed.

Capps, Cantey, Hanger & Short, Mark McMahon, W. D. Smith, and E. A. McCord, all of Fort Worth, for appellant.

Houtchens & Clark, Bryan, Stone, Wade & Agerton, and McLean, Scott & Sayers, all of Fort Worth, for appellees.

BUCK, J.

W. R. Woodall sued the Northern Texas Traction Company and M. J. Bonner, jointly and severally, in damages for personal injuries alleged to have been sustained in a collision between an automobile driven by Bonner and a street car owned by appellant at the intersection of Page and Hemphill streets in the city of Fort Worth, on June 27, 1923. Plaintiff alleged that he was riding in an automobile owned and driven by Bonner while said automobile was being driven in an easterly direction on Page street; that a street car owned by appellant and being operated on Hemphill street and going south ran into and collided with said automobile, and that by reason thereof he sustained certain personal injuries. He alleged that appellant was guilty of negligence in that the operator of the street car approached the intersection of Page and Hemphill streets without giving any warning and without stopping or attempting to stop the street car, and in driving said street car at an excessive rate of speed.

Plaintiff further alleged that as the automobile of Bonner approached the intersection of Page and Hemphill streets it became necessary for the said Bonner to make a turn to the left, and that in so approaching said street car track Bonner discovered the approach of the street car, and at the rate of speed at which Bonner was driving he could, by the exercise of ordinary care, have stopped said automobile in plenty of time to have allowed the street car to pass, and, had said Bonner done so, the accident would not have happened. He also alleged that Bonner was guilty of negligence in this respect: That as he slowly approached the street car track he brought his automobile to almost a complete stop, and that by his said movement the plaintiff thought that Bonner was going to check the speed of his automobile so as to allow the street car to pass, but that Bonner, just about the time he approached, or immediately after approaching Hemphill street, suddenly lurched forward and accelerated the speed of his car and attempted to cross the track, and that Bonner was negligent in this respect in not holding his car within a rate of speed so that he could have stopped the same before going upon the tracks of appellant.

Plaintiff further alleged that he did not own and had no interest in said automobile and had no control over the same or over the driver thereof, and alleged that he was riding as a mere guest of the said Bonner, and the said Bonner having agreed and undertaken to transport plaintiff from a point on Fifth avenue to a point on Jennings avenue, it was the duty of Bonner to transport him in a careful and prudent manner to his destination and to deliver him in safety. He prayed for judgment against the Northern Texas Traction Company and said Bonner, jointly and severally.

Defendant Northern Texas Traction Company, after a general denial, alleged contributory negligence on the part of plaintiff in failing to look and listen for the street car, and that if he had looked and listened he could have seen and heard the street car approaching and he could have warned Bonner, and his failing so to do was negligence. Defendant further pleaded that plaintiff and defendant Bonner were at the time of the accident engaged in a joint mission and enterprise, and that the negligence of defendant Bonner, which was the direct and proximate cause of the collision in question, was imputable to plaintiff. It further alleged that Bonner failed to look and listen for the approaching street car, and, before changing the course of his automobile or attempting to drive across Hemphill street and across appellant's track, that it was the duty of Bonner to ascertain if such movement could be made in safety to himself and the plaintiff; that it was also the duty of Bonner to have his automobile under proper control and to operate the same at such a rate of speed so that he could bring the same to a stop or slow down before coming in contact with appellant's street car, but that said Bonner failed and refused to look and listen for a street car, and failed to have his automobile under control, and drove the said automobile at a negligent and careless rate of speed upon the tracks of appellant immediately in front of appellant's street car; that all of said acts of negligence were the sole, direct, and proximate cause of the accident and collision in question.

Defendant Bonner pleaded a general denial and a general demurrer, and further pleaded that, as he approached Hemphill street, going east, that he looked north and south, and, not observing any approaching car, undertook to drive across said street and over across defendant's street car tracks; that he was driving at a rate of speed not exceeding six miles an hour; that as he approached the track, he suddenly discovered a car on the defendant's track bearing down upon him at a rate of speed of about 20 miles per hour, and at that time was within 25 feet of defendant Bonner's automobile; that upon the discovery of the imminent danger, he concluded that he would not have space to stop his automobile before it got on the tracks, and therefore attempted to pass across the tracks, accelerating the speed of the automobile in order to do so, but the defendant's street car struck his automobile near the rear thereof and inflicted the injury of which complaint is made. He alleged that in so determining he acted on the peril of the moment and did the thing that he thought was the best and only thing he could to prevent injury to himself and to the others in his automobile.

The cause was submitted to a jury on special issues, and the jury found: (1) That it was negligence on the part of the motorman of the street car to operate it at the rate of speed it was being operated upon the occasion in question; (2) that such negligence was the proximate cause of the injuries of plaintiff; (3) that the motorman of the street car was negligent in not applying sooner his brakes to the street car after he saw Capt. Bonner's car moving toward the street car tracks; (4) that such negligence was the proximate cause of plaintiff's injuries; (5) that defendant Bonner was negligent in his conduct in regard to not keeping a lookout for street cars on the occasion involved in this suit; (6) that such negligence was a proximate cause of plaintiff's injuries; (7) that conduct of defendant Bonner in driving his automobile on the street car track after he saw the street car was not negligence; (8) that the collision in question was not an unavoidable accident; (9) that the plaintiff was entitled to $4,500 damages. Upon this verdict the court entered judgment for plaintiff as against the defendant traction company, and judgment for defendant Bonner. From this judgment the defendant traction company has appealed.

Opinion.

In various ways appellant urges that the undisputed evidence shows that the plaintiff and defendant Bonner were engaged in a common, joint enterprise at the time of the collision, and that the trial court erred in failing to give defendant's specially requested peremptory instruction, or at least in failing to submit to the jury an issue involving the question; that if Bonner and Woodall were engaged in a common enterprise at the time of the collision, the negligence of Bonner, which the jury found, in failing to keep a lookout for the street car, must be imputed to Woodall, and he would thereby be precluded from a recovery. Appellee answers these propositions by stating: That the plaintiff did not plead that Bonner was guilty of negligence in not keeping a lookout for the street cars, but pleaded that in the exercise of ordinary care Bonner could have stopped said automobile in plenty of time to have allowed the street car to pass the point of contact before his automobile reached said street car track. Therefore there was no pleading of plaintiff authorizing the submission of the issue of Bonner's negligence in failing to keep a lookout for said street car. That since there were no pleadings, the findings of the jury in answer to such issue afforded no basis for judgment in favor of plaintiff, and the trial court properly ignored them in rendering his judgment. The jury did find that Bonner was not guilty of negligence in attempting to cross the street car track after he discovered the approaching car. Appellee cites such cases as S. A. & A. P. Ry. Co. v. De Ham, 93 Tex. 74, 53 S. W. 375; Mo. Pac. Ry. Co. v. Hennessy, 75 Tex. 155, 12 S. W. 608; T. & P. Ry. Co. v. French, 86 Tex. 96, 23 S. W. 642; Johnson v. G. H. & N. Ry. Co., 27 Tex. Civ. App. 616, 66 S. W. 906, writ of error refused; and the case of G., C. & S. F. Ry. Co. v. Pool, 10 Tex. Civ. App. 682, 31 S. W. 688, by this court.

While as to plaintiff's right of action against defendant Bonner we are inclined to think that the authorities are in point. But as to appellant's plea over against Bonner, it appears that the appellant did plead negligence on the part of Bonner in not looking and listening for an approaching street car before changing his course or attempting to drive across Hemphill street, etc. But such allegation, and the finding of the jury thereon, would not affect the question involved in the first four assignments, which are, as before stated, upon the question of defendant Bonner and plaintiff being...