Northern Texas Traction Co. v. Singer, 985.

• Court: Texas Court of Appeals
• Writing for the Court: Alexander
• Citation: Northern Texas Traction Co. v. Singer, 34 S.W.2d 920 (Tex. App. 1931)
• Decision Date: 15 January 1931
• Docket Number: No. 985.,985.
• Parties: NORTHERN TEXAS TRACTION CO. v. SINGER.

34 S.W.2d 920

NORTHERN TEXAS TRACTION CO. v. SINGER.

No. 985.

Court of Civil Appeals of Texas. Waco.

January 15, 1931.

Appeal from County Court at Law, Tarrant County; P. J. Small, Judge.

Suit by W. E. Singer against the Northern Texas Traction Company. Judgment for plaintiff, and defendant appeals.

Reversed, and remanded for a new trial.

Cantey, Hanger & McMahon, of Fort Worth, for appellant.

Geo. E. Miller and John Morison, both of Fort Worth, for appellee.

ALEXANDER, J.

This suit was instituted by W. E. Singer against the Northern Texas Traction Company to recover damages to plaintiff's automobile and for loss of the use of the automobile while undergoing repair. The plaintiff alleged that he parked his automobile at the south curb of Magnolia avenue in the city of Fort Worth, and that when he undertook to remove his car therefrom it was necessary for him to back the same onto the track of the defendant company; that, before he could turn the automobile and remove the same from the tracks of the defendant company, his automobile choked, and before he could start the engine one of defendant's street cars struck and damaged his automobile. The plaintiff alleged that the defendant and its motorman were negligent in failing to stop the street car before it collided with his automobile and in failing to observe the plaintiff's perilous position on the tracks, and, after observing the same, in failing to bring the street car to a stop.

The defendant, after interposing a general demurrer and general denial, alleged that the plaintiff was guilty of various acts of contributory negligence, naming them, and that each of such acts contributed to and brought about the injury complained of.

The case was submitted to a jury on special issues, which issues were answered in favor of the plaintiff, and the court entered judgment thereon for the plaintiff. The defendant appeals.

Appellant complains of the action of the trial court in the submission of special issue No. 3 of the court's main charge. It complains because the trial court submitted all of the alleged acts of contributory negligence on the part of the plaintiff in one issue and failed to give its specially requested issues submitting said acts of contributory negligence separately. Special issue No. 3 of the court's main charge as submitted to the jury was as follows: "Was the manner and way plaintiff backed his car from the curb and out on the street car track negligence as that term is defined to you in this charge?"

The appellant, at the proper time, objected to this issue because it did not submit to the jury separately each of the specific acts of contributory negligence pleaded by the defendant. The defendant alleged that the plaintiff was guilty of contributory negligence in failing to look and listen for a street car before backing his automobile onto the tracks of defendant and in suddenly backing his automobile onto said tracks without giving any warning and before first seeing that there was sufficient space for the movement of his car in safety. The pleadings were supported by the evidence. The defendant requested a special issue on each of said acts of contributory negligence, which requests were refused.

Revised Civil Statutes (1925), article 2189, requires that each issue raised by the pleadings and supported by the evidence be submitted separately and distinctly. The Supreme Court in the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, at page 521, said:

"The statutes make it the duty of the court in trials by jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and, third, to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue.

"Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error's suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved."

The above issue did not submit to the jury separately each of the alleged acts of contributory negligence, but submitted all of said acts of negligence in one issue. The charge was therefore objectionable, and the trial court should have submitted the special issues as requested by the appellant in lieu thereof. St. Louis, S. F. & T. Ry. Co. v. Wilson (Tex. Com. App.) 279 S. W. 808; Darden v. Denison (Tex. Civ. App.) 3 S.W.(2d) 137; Fort Worth & Rio Grande Railway Company v. Sageser (Tex. Civ. App.) 18 S.W.(2d) 246.

The appellant also complains of the action of the trial court in giving special issue No. 1, which was as follows: "Under all the facts and circumstances shown by the evidence did the motorman in charge of defendant's west bound street car at the time and place in question exercise ordinary care in the operation of the street car?"

The acts of negligence as alleged by plaintiff in his petition and as supported by the evidence were that the defendant's motorman was negligent (a) in failing to stop the street car before it collided with plaintiff's automobile; (b) in not observing plaintiff's peril; and (c) if he did observe plaintiff's peril, he was negligent in not operating the street car so that he could stop same and avoid the collision. In Fox v. Dallas Hotel Co., supra, the Supreme Court said: "In submitting either negligence or contributory negligence, special issues should be restricted to specific acts of negligence alleged and proven. It was no less improper to...