Prince v. Taylor

• Decision Date: 12 November 1914
• Docket Number: (No. 352.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 171 S.W. 826
• Parties: PRINCE et al. v. TAYLOR.
• Court: Texas Court of Appeals

Page 826

171 S.W. 826

PRINCE et al. v. TAYLOR.

(No. 352.)^†

Court of Civil Appeals of Texas. El Paso.

November 12, 1914.

On Rehearing, December 24, 1914.

Appeal from District Court, Harris County; N. G. Kittrell, Judge.

Suit by Joe H. Taylor against H. Prince and another. From a judgment for plaintiff, defendants appeal. Affirmed, and motion for rehearing overruled.

Andrews, Streetman, Burns & Logue, Fisher, Campbell & Amerman, W. L. Cook, and Jno. A. Mobley, all of Houston, for appellants. Gill, Jones & Tyler, of Houston, for appellee.

WALTHALL, J.

In this case the plaintiff in the trial court, Joe H. Taylor, now appellee, sued the defendants, H. Prince and his son, Harry Prince, appellants, for damages for personal injuries which he alleges he sustained by reason of the negligence of the defendants proximately causing his injuries. Briefly stated, the plaintiff alleges in his petition that he was struck by an automobile owned by defendant H. Prince, which at the time of the accident was being driven on Texas avenue in the city of Houston, or just at the corner of Main street and Texas avenue in said city. The petition alleges that his being struck by the automobile and the consequent injuries to him, of which he complains, were caused by negligence for which H. Prince would be liable, upon the following grounds: That at the time of the accident the car causing the injury was being driven by Harry Prince, son of H. Prince, either upon his own responsibility or under the direction of one Schell, whom H. Prince had employed as chauffeur and placed in charge of the automobile, with authority to drive same upon the streets of Houston, for the use and benefit of H. Prince's family, of which it was alleged Harry Prince was a member, and that Harry Prince was likewise placed in charge of the machine by H. Prince, with authority to operate it. The petition alleged that Harry was an inexperienced and incompetent driver of the machine, and that Schell, in charge of the machine, negligently turned the car over to Harry and permitted him to operate same with resultant injury to plaintiff. The petition alleges that the injuries to plaintiff were proximately caused by negligence in one or more of several respects: (1) By Harry, as H. Prince's agent, negligently operating the car, either in violation of the city ordinance, or by failure to exercise ordinary care; (2) by Schell, the chauffeur, and H. Prince's agent, participating in such negligent operation of the car; (3) by negligence of the chauffeur in turning the car over to Harry Prince, an incompetent and inexperienced operator. The damages claimed are predicated upon suffering, mental and physical, lost time, and diminished capacity to labor and earn money.

Defendant H. Prince answered by general demurrer, general denial, and special pleas, in substance: (a) That, if plaintiff was struck by an automobile owned by H. Prince, same was intrusted exclusively into the hands of a competent chauffeur, and, unless at the time of the accident same was being operated by said chauffeur, it was not being operated under the authority or for the use and benefit of H. Prince; (b) that plaintiff was himself guilty of negligence contributing to cause his injuries; (c) that the injuries to plaintiff were proximately caused by an intervening agency, in that, it being Saturday afternoon, with the streets crowded, a street car of the Houston Electric Company had been stopped at the corner, or near thereto, just before making the turn from Texas avenue into Main street, which street car prevented the passage of pedestrians who were going in the direction in which plaintiff was going; and that said street car suddenly started around the curve at that point, causing persons who were then and there near said street car to suddenly step backward or otherwise in the path of the moving automobile, in order to avoid the rear end of said street car, which swung outward toward such persons as the street car took the curve; and that the driver of the automobile, under such circumstances, undertook to turn said automobile so as to avoid striking and injuring such persons so moving out of the path of said street car; and that in doing so said automobile was caused to come in contact with plaintiff, if plaintiff was struck by said automobile. It was alleged that the starting of the street car, with the consequent moving of pedestrians to avoid its outward swing, was the sole proximate cause of injuries to plaintiff; there being no negligence of any persons for whom the defendant H. Prince would be liable on the occasion.

After a careful examination of all of the evidence offered on the trial, we find that the following facts appear without dispute: First. That appellee was injured, and that his injuries were due to the collision of an automobile with his person on the date alleged. Second. That the accident occurred at the intersection of Main street and Texas avenue in the city of Houston, about 7 o'clock in the evening on a Saturday, a time when that place was and is always the most crowded place in the city, both in the matter of moving people and moving vehicles. Third. That the automobile which injured plaintiff was owned by H. Prince, was then being driven by his son, Harry Prince, under the supervision and direction of the chauffeur of H. Prince. Fourth. That the automobile had been purchased by H. Prince for the use of his family, and he, his wife, and his son Harry constituted his family. That his wife and son and two guests were taking a pleasure ride on the occasion in question. Fifth. That the car and chauffeur were subject to the wife's orders. Sixth. That, for about two weeks, Harry had been learning to drive the car under the immediate tutelage of the chauffeur, and that on the occasion of the accident the chauffeur was sitting beside Harry, advising and directing him, and sounding the horn for him on occasion. Seventh. That defendant H. Prince knew that Harry was learning to drive the car, and that he had been running the car, was present a number of times when the fact of Harry's running the car was mentioned, had ridden in the car on at least one occasion when Harry was driving, and made neither protest nor comment. Mrs. H. Prince had ridden a number of times when Harry drove, advising and directing him. Eighth. The legal limit of speed on Main street at and near the point of the accident was eight miles per hour, which had to be reduced to four miles per hour in turning corners. Ninth. It is undisputed that in turning the corner the automobile was exceeding the speed limit for turning corners, the speed being placed by Harry and the chauffeur at from five to six miles an hour, and the other witnesses varying up to twenty miles per hour. Tenth. It was undisputed that it was the moving automobile that injured plaintiff. Eleventh. The automobile was a five-passenger Packard, with a wheel base of 129 inches, which, with its overhang, would give the machine a total length of more than 12 feet. Twelfth. At the time of the accident, plaintiff had walked up Main street on the eastern sidewalk, and had just started across Texas avenue, toward the Binz Building, in the same direction and on the same side of Main street, when he was struck by the automobile, just as it turned the corner. Thirteenth. He was rolled or dragged several feet by the machine. The machine ran from 50 to 75 feet beyond the point of collision before the driver was able to stop it. Fourteenth. A lady, named Mrs. Walker, was badly injured by the same machine at the same time and place.

Appellant's first assignment of error complains of the tenth paragraph of the court's general charge, in that said paragraph instructs the jury that H. Prince would be liable for the negligent acts of Harry Prince, if any, in the operation of the automobile, without properly submitting to the jury anywhere in the charge the question of whether or not there were such relations between H. Prince and Harry Prince as would amount to an agency, permitting the application of the doctrine of respondeat superior. The paragraph of the charge complained of reads as follows:

"Guided by these instructions, if you believe from a preponderance of the evidence that the automobile was being run at such rate of speed and under such circumstances as, you have heretofore been instructed, constituted negligence, and you further believe that plaintiff was struck by an automobile belonging to defendant H. Prince, and that plaintiff was injured by being so struck, and believe that the negligence of those in charge of the car, or of either the chauffeur or Harry Prince, if negligence you find, was the proximate cause of plaintiff's being injured, the plaintiff is entitled to recover; and, unless you find for defendants upon instructions given in other parts of this charge, you will return your verdict in his favor against either H. Prince or against Harry Prince, or against both, according as you find liability under instructions hereinafter given."

The three propositions under this assignment are to the effect that, before H. Prince could be held liable for any negligence of Harry Prince, the evidence must either show as a matter of law, or raise the issue as a fact, that Harry was H. Prince's agent, acting within the scope of his agency, in the operation of the car, and that the fact of Harry's agency was an issuable fact and not undisputed to be stated by the court as a matter of law, and that it was prejudicial error, as the charge nowhere else presented to the jury appropriate instructions correctly informing them as to the circumstances under which H. Prince might be held liable for negligent acts of Harry Prince. If it were a necessary fact, to be shown before H. Prince could be made liable for the negligent act of Harry Prince in driving the car at the time and place of the accident, that H. Prince should have given Harry permission to...