Rosenthal Dry Goods Co. v. Hillebrandt

• Court: Texas Court of Appeals
• Writing for the Court: Hightower
• Citation: Rosenthal Dry Goods Co. v. Hillebrandt, 280 S.W. 882 (Tex. App. 1926)
• Decision Date: 21 February 1926
• Docket Number: (No. 1341.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ROSENTHAL DRY GOODS CO. v. HILLEBRANDT.

280 S.W. 882

ROSENTHAL DRY GOODS CO. v. HILLEBRANDT.

(No. 1341.)^*

Court of Civil Appeals of Texas. Beaumont.

February 21, 1926.

Rehearing Denied March 3, 1926.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Eliza Hillebrandt against the Rosenthal Dry Goods Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C. A. Lord, of Beaumont, for appellant.

A. L. Shaw, of Beaumont, for appellee.

HIGHTOWER, C. J.

The appellee, Miss Eliza Hillebrandt, filed this suit in one of the district courts of Jefferson county against appellant, Rosenthal Dry Goods Company, to recover damages for personal injuries alleged to have been sustained by her in consequence of a collision between one of appellant's motor trucks and appellee's buggy, in which she was at the time riding, resulting in the destruction of the buggy, injuries to the horse, and certain personal injuries, which she specified in her petition.

It was alleged that the collision and injuries and damages suffered by appellee were proximately brought about and caused by negligence on the part of appellant and its servant and employee who was driving the motor truck for appellant and who was then in the discharge of his duties as such employee. The accident occurred on the evening of November 19, 1920, between 6:30 and 7 o'clock, in the following manner: The appellee lived a few miles south of the city of Beaumont, in Jefferson county, and on the evening of the accident she started from her home about dusk, traveling in her buggy, to come to the city of Beaumont. At the time of the accident appellee was traveling north on Highland avenue, a public highway or street leading into the city of Beaumont from the neighborhood where appellee lived. At a certain point of Highland avenue one of appellant's motor trucks, which it used for the delivery of dry goods sold at retail, and which was being driven by one of its employees, and which was going at that time south on Highland avenue, came into contact and collision with appellee's horse and buggy, turning the buggy over and injuring the horse and throwing appellee to the ground, from which she sustained personal injuries. It was after dark when the accident happened, and plaintiff alleged, substantially, that she never discovered the approach of the automobile until it was right close to her buggy, and that she was unable to get out of its way, and that, on account of the negligence of which appellant and its driver were guilty, her buggy was struck, and all the injuries and damages were proximately caused by such negligence. The appellee specified particularly and in detail the negligent acts and omissions, on the part of appellant and the driver of the motor truck, upon which she relied for recovery of damages. These alleged negligent acts and omissions were specifically charged as follows:

"(a) Because said automobile truck was being driven and operated by the defendant's agent and servant at a high, reckless, and dangerous rate of speed, to wit, in excess of 25 miles an hour in violation of the law of the state of Texas, and also in violation of his duties to plaintiff and to others similarly situated and to the public in general, thereby permitting and causing the said automobile truck to run and strike the said buggy, thereby damaging same and injuring the plaintiff.

"(b) That the said agent and employee of the defendant, being then in the discharge of the duties of his employment, in driving the said automobile truck upon said highway during the period of one-half hour after sunset to one-half hour before sunrise, failed to carry at the front of the said automobile truck a lighted lamp showing a white light, visible under normal atmospheric conditions at least 500 feet in the direction towards which the said motor vehicle was facing, the said motor vehicle being then and there driven towards and facing the buggy in which the plaintiff was riding.

"(c) In that the said agent and employee of defendant while in the discharge of the duties of his employment, in driving the said automobile truck on the occasion in question and in the nighttime and after dark, drove the same to and towards the buggy in which the plaintiff was riding, without having and displaying lights thereon so that the same was visible to plaintiff, and did then and there drive the said automobile truck into and strike the said buggy in which the plaintiff was riding, damaging the said buggy and injuring the plaintiff as herein alleged.

"(d) In that the said agent and employee of the defendant, while in the discharge of the duties of his employment, drove said automobile truck on the occasion in question upon the public highway after dark without lights which would enable the plaintiff and others using said highway to see the approach of the said automobile truck and avoid being struck by same, and did then and there run into and strike the buggy in which plaintiff was riding damaging the same and injuring the plaintiff as herein alleged.

"(e) In that the said agent and employee of the defendant, while in the discharge of the duties of his employment, driving said automobile truck upon said highway where the territory contiguous thereto was closely built up, drove said automobile truck at a greater rate of speed than 18 miles per hour, and did then and there, recklessly and carelessly, in violation of law, operate said truck on said highway, striking the buggy in which the plaintiff was riding, damaging same and injuring the plaintiff as herein alleged.

"(h) In that the defendant's said agent and employee, while in the discharge of the duties of employment, upon the occasion in question, failed to drive, operate, and steer said automobile truck so as to avoid striking, but permitted the same to strike, the buggy in which the plaintiff was riding, damaging the same and injuring the plaintiff as herein alleged.

"(i) That the defendant failed to furnish its agent and employee, while in the discharge of his duties of said employment, with proper lights so as to permit the driver thereof while operating truck in the dark to see the approach of a vehicle, or to permit the drivers of other vehicles to see the approach of the truck."

Appellant answered, as far as is necessary to here state, by general demurrer and general denial. The case was tried with a jury, upon whose answers to what the trial judge termed "special issues," judgment was rendered in favor of appellee for $5,000, from which this appeal is prosecuted.

A number of assignments of error and propositions under them are advanced by appellant for reversal, but we deem it necessary to specifically mention only two of appellant's contentions. The only attempt on the part of the trial court to submit for the jury's consideration any issue of negligence on the part of appellant was the following:

"Special Issue No. 2: Do you find from a preponderance of the evidence under the facts and...