El Paso Electric Co. v. Collins

• Decision Date: 29 January 1930
• Docket Number: (No. 1275-5319.)
• Citation: 23 S.W.2d 295
• Parties: EL PASO ELECTRIC CO. v. COLLINS et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

23 S.W.2d 295

EL PASO ELECTRIC CO. v. COLLINS et ux.^*

(No. 1275-5319.)

Commission of Appeals of Texas, Section A.

January 29, 1930.

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

Suit by Margaret E. Collins and husband against the El Paso Electric Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals , and defendant brings error. Judgments both reversed, and cause remanded for new trial.

Goggin, Hunter & Brown, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error.

Paul D. Thomas and R. A. D. Morton, both of El Paso, for defendants in error.

CRITZ, J.

This suit was instituted in the district court of El Paso county, Tex., by Margaret Eileen Collins, and husband, C. D. Collins, against the El Paso Electric Company, for damages to the automobile in which they were riding and for personal injuries suffered by Mrs. Collins while riding in the automobile resultant from a collision between the automobile and a street car of the electric company within the city limits of El Paso, Tex., in October, 1926. There was a judgment in the trial court for the plaintiffs in the sum of $5,179.60, based on a verdict on special issues. These issues and the answers of the jury thereto are fully stated in the opinion of the Court of Civil Appeals, and for the sake of brevity we do not repeat them here. The electric company duly appealed to the Court of Civil Appeals for the Eighth District at El Paso, which court affirmed the judgment of the trial court. 10 S.W.(2d) 397. The case is now before the Supreme Court on writ of error granted on application of the electric company.

By proper assignment the electric company contends that the Court of Civil Appeals erred in overruling the propositions contained in its brief in which the electric company contended: (a) That the defendant in error Collins violated the provisions of a certain city ordinance of the city of El Paso, Tex., and was therefore guilty of negligence as a matter of law; and (b) that, if the evidence was not sufficient to entitle the electric company to an instructed verdict, then the trial court was in error in refusing to submit to the jury special issues in connection with said ordinance.

The ordinance of the city of El Paso involved in this assignment and declared invalid by the Court of Civil Appeals reads as follows: "At every street intersection within the city limits that is not under the control of a police officer, vehicles and street cars approaching the point of intersection on different streets at the same time shall be kept under control, so that the car or vehicle approaching such point of intersection at the right of another car or vehicle shall have the right of way and first cross such intersecting street."

The penalty prescribed by the ordinance for its violation is by fine not less than $1 nor more than $100.

The undisputed evidence shows that at the time of the collision the street intersection at which the collision occurred was not under the control of a police officer.

The Court of Civil Appeals holds that the above ordinance is invalid and that the trial court did not err in refusing to submit defensive theories based thereon, because the ordinance as to penalty is in conflict with subdivision (E) of article 801 of the Penal Code of Texas. Said subdivision (E) of the Penal Code reads as follows: "Except where controlled by such ordinances or regulations enacted by local authorities, as are permitted under the law, the operator of a vehicle approaching an intersection on the public highway shall yield the right-of-way to a vehicle approaching such intersection from the right of such first named vehicle."

The penalty prescribed by the above penal statute is by fine not exceeding $100.

From the above it is seen that the maximum fine under both the ordinance and the statute is $100, while the minimum fine under the statute might be 1 cent, and the minimum fine under the ordinance is $1. This conflict in the penalty certainly renders the ordinance void as a penal law in so far as the ordinance applies to, or attempts to regulate, traffic at street intersections between vehicles such as automobiles with each other, under the authorities cited by the Court of Civil Appeals. Ex parte Brewer, 68 Tex. Cr. R. 387, 152 S. W. 1068; Ex parte Goldburg, 82 Tex. Cr. R. 475, 200 S. W. 386. This because the ordinance and the statute both substantially define the same offense, and attempt to regulate the same thing as between vehicles such as motorcars, etc., at street intersections with each other. Under the authorities cited above, this would render the ordinance invalid as a penal law as applied to such vehicles.

This brings us to a consideration of the question as to whether so much of the ordinance as applies to the meeting of vehicles, such as automobiles, etc., with street cars, at street intersections, can stand as a penal law, while that part which applies to the meeting of vehicles other than street cars with each other falls. A careful examination of the ordinance and the statute, and a comparison of one with the other, will disclose that the part of the ordinance which applies to the meeting of vehicles other than street cars is substantially the same as the statute; therefore, if the ordinance had applied the same penalty as the statute, it would, as to that part which attempts to regulate the meeting of vehicles such as automobiles, etc., with each other at street intersections, have been absolutely superfluous, as the statute at the time that ordinance was passed and approved on August 7, 1924, covered and defined the same offense. Since the ordinance was not necessary at all as a police regulation to regulate traffic at street intersections in so far as the ordinance and the statute cover the same grounds, and since the city had the undoubted authority to prescribe additional regulations governing traffic at street intersections within the city between street cars and motor vehicles, and also to define reciprocal rights between such parties, we think there can be no question, inasmuch as the state has not seen fit to regulate that matter, that so much of the ordinance as regulates the meeting of street cars with motor vehicles, and prescribes their reciprocal rights, and also the penalty provided for its violation, can stand as valid and binding, while the other part falls. Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874; Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370; Byrd v. State, 59 Tex. Cr. R. 513, 129 S. W. 620; Wade et al. v. Nunnelly et al., 19 Tex. Civ. App. 256, 46 S. W. 668, 672.

In Ex parte Henson, supra, it is shown that Henson was arrested under proper complaint charged with violating an ordinance of the city of Greenville, Tex., and sued out, before the Court of Criminal Appeals of this state, an original writ of habeas corpus to secure his release. The ordinance in question provided: "Be it ordained by the city council of...