Nussbaum v. Anthony

• Decision Date: 27 September 1948
• Docket Number: No. 5895.,5895.
• Citation: Nussbaum v. Anthony, 214 S.W.2d 686 (Tex. App. 1948)
• Parties: NUSSBAUM et al. v. ANTHONY.
• Court: Texas Court of Appeals

214 S.W.2d 686

NUSSBAUM et al. v. ANTHONY.

No. 5895.

Court of Civil Appeals of Texas. Amarillo.

September 27, 1948.

Rehearing Denied November 13, 1948.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Janice Anthony against Martin P. Nussbaum and another, composing a partnership operating under the trade-name of Amarillo Bus Company, for injuries resulting when plaintiff was struck by one of defendant's motorbusses. From an adverse judgment, defendants appeal.

Affirmed.

Simpson, Clayton & Fullingim, all of Amarillo (Selden Simpson and Joe Harlan, both of Amarillo, of Counsel), and Gibson, Ochsner & Little, all of Amarillo, for appellants.

Adkins, Pipkin, Madden & Adkins, of Amarillo, and J. O. Fitzjarrald, of Memphis, for appellee.

STOKES, Justice.

This is a suit for damages for personal injuries. It was instituted by the appellee, Janice Anthony, against the appellants, Martin P. and George F. Nussbaum, composing a partnership operating under the trade name of Amarillo Bus Company. The record reveals that, in the late afternoon of October 31, 1946, appellee was walking north on the sidewalk adjoining the east side of Polk Street in Amarillo, and that one of appellants' busses was proceeding in the same direction on the east side of the same street. Third Avenue crosses Polk Street at right angles and appellee and the bus reached Third Avenue about the same time. Both of them stopped at Third Avenue to await the change of the electric traffic signal in the center of the intersection from red to green. When the signal changed to green, thus giving them the right to proceed, appellee started across Third Avenue and the bus following its usual route, turned east from Polk Street into Third Avenue. Appellee alleged that when she was about four feet north from the south curb on Third Avenue, the driver of the bus negligently ran into and against her and that the impact resulted in serious bodily injury.

Appellant answered by a general denial and alleged contributory negligence on the part of appellee to the effect that she attempted to cross Third Avenue while the signal light was amber and before the green light appeared. They alleged that she failed to keep a proper lookout for the approach of the bus and that she was guilty of contributory negligence in attempting to cross Third Avenue in the manner in which she was proceeding at the time, taking into consideration all of the facts and circumstances surrounding the manner in which she was attempting to do so. They further alleged that the striking of appellee by the bus and the resulting injury to her were the result of an unavoidable accident.

The case was submitted to a jury upon special issues, in answer to which the jury found that, in making the turn at the street intersection, the driver of the bus failed to keep such a proper lookout for persons who might be walking north across Third Avenue as would have been kept by a person of ordinary prudence under the same or similar circumstances, and that the driver failed to give to persons walking across Third Avenue any warning or signal of his approach. It found that the failure of the bus driver to keep a proper lookout and his failure to sound a warning each was negligence and a proximate cause of the impact between appellee and the bus. On the question of contributory negligence the jury found that appellee did not fail to keep a proper lookout for the approach of vehicles on Polk Street turning to the right into Third Avenue and it found that $7500 would fairly and reasonably compensate her for the injuries received by her. The elements of damage specified by the court in the special issue on the measure of damages were diminished capacity to work and earn money in the past and future, if any, and the pain and suffering she had endured in the past and would endure in the future, if any, proximately resulting from the injuries, if any, sustained by her on the occasion in question.

The court entered judgment in favor of the appellee for the sum of $7500, in accordance with the finding of the jury and, appellants' motion for a new trial being overruled, they perfected an appeal and present the case for review by this court upon four assignments of error. They contend, first, that the court erred in refusing to submit to the jury their requested special issue in which the jury would have been required to find whether or not appellee walked into the bus being driven by appellants' driver; secondly, in refusing to submit to the jury their requested special issue in which the jury would have been required to find whether the collision between the bus and the appellee was not the result of an unavoidable accident, thirdly, that the court erred in submitting special issue number five, pertaining to the measure of appellee's damages, and fourthly that the judgment rendered against them is excessive.

The claim that appellee walked into the bus amounted only to an assertion that the collision was the result of contributory negligence on her part. This identical question was before the Court of Civil Appeals of the Second District in the case of Yanowski v. Fort Worth Transit Co., 204 S.W.2d 1001, and Chief Justice McDonald expressed the conclusion of the court in such clear and convincing language that we deem a further discussion of it unnecessary. In that case the jury found that Yanowski stepped into the side of the bus as it turned from Houston Street into Tenth Street and the court observed that the finding was no more, in effect, than a finding that the side of the bus was the point of contact; that the issue was an evidentiary one and not an ultimate issue constituting one of the elements of an independent ground of defense. We agree with that holding and appellants' first contention will be overruled.

Appellants next contend that the court erred in declining to submit to...