Orchin v. Fort Worth Poultry & Egg Co.

• Decision Date: 17 October 1931
• Docket Number: No. 10869.,10869.
• Citation: 43 S.W.2d 308
• Parties: ORCHIN et al. v. FORT WORTH POULTRY & EGG CO. et al.
• Court: Texas Court of Appeals

43 S.W.2d 308

ORCHIN et al. v. FORT WORTH POULTRY & EGG CO. et al.

No. 10869.

Court of Civil Appeals of Texas. Dallas.

October 17, 1931.

Rehearing Denied November 28, 1931.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by Mrs. Eunice Orchin and another against the Fort Worth Poultry & Egg Company and another, in which the Indemnity Insurance Company of North America intervened. From an adverse judgment, the plaintiffs appeal.

Reversed and remanded.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellants.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, and Sidney Samuels, of Fort Worth, for appellees.

JONES, C. J.

This is a suit instituted in a district court of Dallas county by appellants, Mrs. Eunice Orchin, a widow, in her individual capacity, and as next friend of her minor daughter, Dorothy Orchin, against the Fort Worth Poultry & Egg Company and Armour & Co., to recover damages for the alleged wrongful death of her husband, Joe Orchin, who was an employee of the Gulf Refining Company. This company carried compensation insurance with the Indemnity Insurance Company of North America, and the insurance company intervened, on the ground that it had partly paid and was obligated to pay to appellants $20 per week for 360 weeks, under the compensation insurance and should be reimbursed by appellee for the amount paid and to be paid. A judgment resulted in favor of appellees, and appellants have perfected an appeal. The indemnity company did not appeal. Appellants dismissed their suit against Armour & Co., and the issues on this appeal are between appellants and appellee, the Fort Worth Poultry & Egg Company.

Joe Orchin, deceased, at the time of his death, was employed as a lubrication engineer by the Gulf Refining Company, at a salary of $315 per month. On October 5, 1928, deceased was traveling in a Ford coupé from Dallas to Fort Worth, and when about seven miles out from Dallas, just beyond the village of Arcadia, his car collided with a Dallas-bound truck owned by appellee and operated by J. E. Scott. From this collision, deceased received injuries which resulted in his death. At the place of the collision, the paved portion of the highway was 20 feet in width, and on each side of the pavement there was a ditch about five feet from the pavement. Before the collision, one T. W. Saverance, who was traveling from Fort Worth to Dallas in a model T Ford touring car, had parked his car on his right side of the highway, the outside wheels being just off of the pavement, in order to do some repairing on his engine. This highway at the place of the collision extended practically east and west, and to those going towards Fort Worth the south side of the highway was to the left, and the opposite was true of those going towards Dallas. When the truck Scott was driving approached Saverance's parked car, it turned to the north in order to pass the car, and swerved to the left or north side of the highway. At this time, deceased was approaching the Saverance car on the north or right side of the highway, going towards Fort Worth. The truck and coupé collided east of the Saverance car; the evidence being sharply contradictory as to the distance from said car. The collision occurred on the north side of the highway. The left front wheel of the truck was broken, and the left front fender broken and driven back. The left hind wheel of the coupé was destroyed, and the fender from about midway on the left side of the car was destroyed, and the left door and the left rear side of the car badly battered. The evidence is conflicting as to whether the truck had turned to the south or right side of the highway at the time the collision occurred. The evidence is also in sharp conflict as to the speed of both the coupé and the truck at the time of the collision, except that they were each in excess of 15 miles per hour. No statement was made by deceased, for he was unconscious during all of the times described by the witnesses, and consequently the only eye witnesses to the accident were Saverance and Scott, the driver of the truck, though several witnesses heard the collision, and at once went to the scene of the accident.

The petition alleged the various grounds of negligence submitted to the jury by the court in the form of special issues, and the pleading of appellee alleged the various defensive matters, submitted to the jury in special issues.

The court correctly defined negligence, proximate cause, and certain terms used in these definitions. The findings of the jury material to this review, paraphrased, are as follows (1) The truck was not driven by Scott on the occasion in question at a rate of speed in excess of thirty-five miles per hour. (3) J. E. Scott operated the truck upon the left-hand side of the highway at a time when the left-hand side of the highway was not clear and unobstructed for a distance of at least fifty yards ahead. (4) Such act on the part of Scott was a proximate cause of deceased's injury. (5) J. E. Scott, in attempting to pass deceased's automobile, failed to give him at least one-half of the highway. (6) Such failure on the part of Scott was a proximate cause of deceased's injury. (7) J. E. Scott failed to slow down to a speed of 15 miles per hour at the time he attempted to pass deceased's automobile. (8) Such failure was not a proximate cause of deceased's injury. (9) J. E. Scott went to the left-hand side of the highway in attempting to pass the automobile of Saverance without leaving sufficient space to his left on such highway for the deceased's car to pass in safety. (10) Such act was negligence, and (11) a proximate cause of deceased's injury. (12) J. E. Scott, in approaching the automobile owned by Saverance, swerved suddenly from behind said automobile to the left-hand side of the highway without giving any signal or warning to automobiles, approaching from the opposite direction, of his intention to do so. (13) Such failure of Scott was not negligence, nor (14) a proximate cause of deceased's injury. (15) and (16) Submit issue of discovered peril which is found against appellant. (18) Deceased failed to slow down his car to 15 miles per hour in attempting to pass Scott's truck. (18a) Such failure on the part of deceased proximately contributed to and caused his injury. (19) Just prior to the collision deceased operated his automobile at a rate of speed in excess of 35 miles per hour. (20) Such act on the part of deceased proximately contributed to his injury. (21) At the time of the collision deceased was not operating his automobile at a rate of speed in excess of 35 miles per hour. (23) Prior to the time of the collision, deceased exercised reasonable care to keep his car under control. (25) At the time of the collision, deceased exercised reasonable care to keep his car under control. (27) Deceased did not attempt to pass Scott's truck prior to the time said truck had completed passing beyond the Saverance car. (30) Just prior to the collision, deceased did not operate his car on his left-hand side of the highway. (32) Just prior to the collision, deceased exercised ordinary care to keep a reasonable lookout for the traffic on the road ahead of him. (34) Just prior to the time of the collision, deceased applied the brakes to his car, and (35) exercised ordinary care for his own safety in applying the brakes. (37) Deceased's injury was not the result of an unavoidable accident. (38) An ordinarily prudent person, in the position in which deceased was approaching the scene of accident, could have seen the situation of the said truck in time to have avoided the collision.

The contentions of appellants, based on proper assignments of error, are: (1) The court erred in entering any judgment except that of a mistrial in the case, because of contradictory findings by the jury; (2) error in the admission of certain evidence, and error in a refusal to admit certain evidence; (3) error by the court in commenting on the demeanor of a witness in reference to evidence elicited by appellants; (4) inflammatory and prejudicial argument by counsel for appellees. The nature and grounds of these contentions will appear from the discussion of the case.

Our Penal Code, article 794, prohibits all operators of motor vehicles from passing each other on a public highway at a greater rate of speed than 15 miles per hour, and prescribes a fine for its violation. Subdivision (A) of article 801 directs each driver of a vehicle upon a public highway to travel upon the right-hand side of the highway, unless the road on the left-hand side of such highway is clear and unobstructed for a distance of at least 50 yards ahead. Subdivision (B) of such article declares that vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other one-half of the road as nearly as possible. Subdivision (C) of such article declares that vehicles overtaking other vehicles, proceeding in the same direction, shall pass to the left thereof, and shall not again drive to the right until the road is reasonably clear of such overtaken vehicle. Subdivision (F) of such article declares that it is the duty of the person operating or in charge of an overtaking vehicle to sound audible and suitable signals before passing a vehicle proceeding in the same direction. Violation of each of these sections is made a misdemeanor, punishable by fine. If the operator of a vehicle on a public highway violates any one of the above statutes, he is guilty of negligence per se in the operation of the vehicle.

The findings of the jury on issues Nos. 3 and 4, also on issues Nos. 5 and 6, and also on issues Nos. 9, 10, and 11, are affirmative findings in favor of appellants, and require a judgment in favor of appellants, unless their legal effect is nullified by findings in favor of appellee.

In response to issue No. 18, the jury found as a fact that deceased failed...