Raub v. Rowe

• Decision Date: 07 July 1938
• Docket Number: No. 3718.,3718.
• Parties: RAUB v. ROWE.
• Court: Texas Court of Appeals

119 S.W.2d 190

RAUB v. ROWE.

No. 3718.

Court of Civil Appeals of Texas. El Paso.

July 7, 1938.

Rehearing Denied August 12, 1938.

Appeal from District Court, Dallas County; Towne Young, Judge.

Action by Mrs. Bertha Raub against Miss Clara Rowe for injuries sustained while riding in an automobile owned and driven by defendant. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Mrs. Bertha Raub, appellant, brought this suit against Miss Clara Rowe to recover damages caused by personal injuries. The injuries were sustained by plaintiff while she was riding in an automobile owned and driven by Miss Rowe. The defendant undertook to pass another vehicle on the highway traveling in the same direction, and while attempting to do so Miss Rowe's car overturned inflicting the injuries complained of. A general demurrer to the petition was sustained. The plaintiff declined to amend and her suit was dismissed. Those portions of the petition material to the consideration of the question presented read as follows:

"II. For cause of action herein plaintiff respectfully shows the Court that heretofore, to-wit, on or about the 17th day of April, 1935, the plaintiff, defendant and Miss Edna Rowe desiring to visit a relative, Ella Thompson, who resides in the City of Raymondville, Texas, departed from Dallas on said date having as their destination Raymondville. The plaintiff not having an automobile available for her transportation, contacted the defendant and Miss Edna Rowe and the defendant agreed to furnish her automobile for the transportation of the plaintiff and Miss Edna Rowe to Raymondville, the plaintiff and Miss Edna Rowe contributing their proportionate part of the expense of the trip, that is for the purchase of gas and oil for the automobile and the defendant was to contribute the use of her car and share a portion of the expense with the plaintiff and their companion of said trip, Miss Edna Rowe.

"III. After visiting in Raymondville as planned and departing on their return trip for Dallas, Texas, on the 21st day of April, 1935, and at a point about thirty miles south of Falfurrias the defendant, who was driving said car, in an effort to attempt to pass another vehicle on the highway, overturned inflicting the injuries to the person of plaintiff as will be hereinafter shown.

"IV. Plaintiff would further show the Court that at all times during the trip to Raymondville and from Raymondville toward Dallas the defendant, Clara Rowe, drove the automobile in which the plaintiff was riding. The plaintiff and their mutual companion, Miss Edna Rowe, were riding in the rear seat of the five passenger automobile. At no time during said trip or return did plaintiff exercise any control over the driving and manipulation of the automobile in which they were riding, and at no time did she have an opportunity to do so, since she was riding in the rear seat and the control and manipulation of the automobile was at all such times solely and wholly in the hands of the defendant, Clara Rowe.

"V. Plaintiff would further show the Court that at the point where the automobile overturned the road was very narrow with loose gravel shoulders. The defendant drove up behind another car and without warning or in any way conveying to the plaintiff her intention to swerve to the left and attempt to pass the car in front, she suddenly turned to the left and attempted to drive along side of the automobile proceeding in the same direction in front of the car in which plaintiff was riding and increased the speed in an effort to pass said car and due to the fact that the road was very narrow the left front wheel and the left rear wheel came in contact and rolled upon the loose gravel shoulders of the road, causing the car to overturn. Prior to the overturning of the car the defendant lost control of the same and it swerved across the road to the right-hand side and turned completely around facing in the direction from which they were driving before finally stopping in an overturned position. * * *

"VII. Plaintiff would further show to the Court that the defendant was guilty of gross negligence in the driving and operation of said vehicle at the time and on the occasion aforesaid, and that her conduct in the driving, manipulation, operation and control of said automobile was with an abandoned and reckless disregard of the rights and safety of the plaintiff as a passenger thereof in the following instances, which said gross negligence, abandoned and reckless disregard of the rights and safety of the plaintiff was a direct and proximate cause of the injuries and damages suffered by plaintiff as hereinafter alleged.

"A. The defendant was guilty of gross negligence in attempting to pass an automobile on said narrow, high crown asphalt highway without sufficient and ample room to permit the passage of said automobile without the left-hand wheel of her car getting off the asphalt or tarvia pavement onto the gravel shoulder, at a speed in excess of forty-five miles per hour.

"B. That the defendant was guilty of gross negligence in, after having followed said automobile which she attempted to pass for sometime and after it had become evident to her that said automobile was and would not move over and there was not sufficient room for her to pass and the four wheels of the automobile which she was driving remain upon the paved surface of said road, deliberately attempting to pass said automobile at a speed in excess of forty-five miles an hour.

"C. That said defendant, in attempting to pass an automobile on the narrow high crown highway, after her inability to do so for sometime and for a distance of over two miles and it was apparent that she could not pass said automobile without getting onto the loose gravel shoulder of said highway and crossing over the rough and jagged edges of the paved portion of said highway with both the front and the rear left wheels of her said car, recklessly disregarded the rights of her passengers in attempting to and in passing and going around said automobile on said highway at rate of speed in excess of forty-five miles per hour.

"All of which said acts of gross negligence and reckless disregard of the rights of the plaintiff and other passengers of the automobile of defendant, each of said acts acting independently and jointly and concurrently, directly and proximately caused the injuries and damages suffered by the plaintiff as hereinafter alleged."

Allen & Allen, of Dallas, for appellant.

Bromberg, Leftwich, Carrington & Gowan, of Dallas (Benjamin G. Habberton and W. C. Gowan, both of Dallas, of counsel), for appellee.

HIGGINS, Justice (after stating the case as above).

The question which first arises is whether the plaintiff was a guest of the defendant riding in the latter's car without payment for such transportation within the purview of Chapter 225, p. 379, Acts of the Forty-second Legislature,...