Northern Texas Traction Co. v. Woodall

• Decision Date: 02 November 1927
• Docket Number: (No. 1000-4872.)
• Citation: 299 S.W. 220
• Parties: NORTHERN TEXAS TRACTION CO. v. WOODALL et al.
• Court: Texas Supreme Court

Page 220

299 S.W. 220

NORTHERN TEXAS TRACTION CO. v. WOODALL et al.

(No. 1000-4872.)

Commission of Appeals of Texas, Section A.

November 2, 1927.

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

Action by W. R. Woodall against the Northern Texas Traction Company and another. Judgment for plaintiff against named defendant was affirmed by the Court of Civil Appeals (294 S. W. 873), and named defendant brings error. Reversed and remanded.

Cantey, Hanger & McMahon, W. D. Smith, and E. A. McCord, all of Fort Worth, for plaintiff in error.

Houtchens & Clark, of Fort Worth, for defendants in error.

BISHOP, J.

Defendant in error Woodall instituted this suit against plaintiff in error, Northern Texas Traction Company, and M. J. Bonner, to recover damages for personal injuries sustained in a collision between an automobile driven by Bonner in which he (Woodall) was riding, and a street car owned by plaintiff in error, at an intersection of public streets in the city of Fort Worth, Tex. He alleged in his petition that the operator of the street car was negligent in approaching said intersection without giving any warning and without stopping or attempting to stop the street car, and in driving the street car at an excessive rate of speed, and that such negligence was the proximate cause of his injuries. The answer of plaintiff in error, traction company, tendered the issue as to whether Bonner's negligence in failing to keep a proper lookout as he approached the street car track at the intersection was the sole proximate cause of the collision and injury to defendant in error Woodall, and there was evidence adduced supporting this issue.

The case was submitted to a jury on special issues, resulting in a verdict and judgment against plaintiff in error, but in favor of its codefendant, Bonner. This judgment was by the Court of Civil Appeals affirmed, Justice Dunklin dissenting (294 S. W. 873).

The court refused to submit the issue tendered as to whether Bonner's negligence in failing to keep a lookout was the sole proximate cause of the injury sustained. The refusal to submit this issue is assigned as error. The assignment should be sustained. The law applicable to this question is clearly stated by Justice Dunklin in his dissenting opinion as follows:

"Upon a further consideration, the writer has reached the conclusion that appellant's assignment of error, to the refusal of the trial court to submit the issue as to whether or not the defendant Bonner's negligence in failing to keep a proper lookout for street cars on the occasion of the accident in controversy was the sole proximate cause of the collision in question, should be sustained. The court did submit the issue as to whether or not Bonner was guilty of negligence in that respect and whether such negligence was a proximate cause of the accident, to both of which issues the jury returned answers in the affirmative. The appellant specially pleaded that such negligence on the part of Bonner was the sole proximate cause of the collision and the injury resulting to plaintiff therefrom.

"It is a well-settled rule of decisions of this state that a defendant has the right to an affirmative presentation to the jury of any fact or specified group of facts relied on in his pleadings as a defense, which, if true, would establish such defense. The leading decision is M. K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. The rule announced in that decision has been uniformly followed in many other decisions, both by the Supreme Court and Courts of Civil Appeals, such as Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Id. (Tex. Civ. App.) 196 S. W. 648; St. L. S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Fort W. & D. C. Ry. Co. v. Taylor (Tex. Civ. App.) 153 S. W. 355; Jones v. M. K. & T. Ry. Co. (Tex. Civ. App.) 157 S. W. 213; G., C. & S. F. Ry. Co. v. Loyd (Tex. Civ. App.) 175 S. W. 721; Texas Electric Ry. Co. v. Sikes (Tex. Civ. App.) 251 S. W. 589; Gammage v. Gamer Co., 213 S. W. 930, by Commission of Appeals, whose conclusions were adopted by the Supreme Court; Armour & Co. v. Morgan 108 Tex. 417, 194 S. W. 942, and many other cases which might be cited.

"In the case of Gammage v. Gamer Co., 213 S. W. 930, noted above, plaintiff was allowed a recovery upon a finding of negligence on the part of defendant in a single respect, and the judgment was reversed by our Supreme Court for the sole reason that the court refused defendant's...