Routledge v. Rambler Automobile Co.

• Decision Date: 30 May 1906
• Citation: 95 S.W. 749
• Parties: ROUTLEDGE v. RAMBLER AUTOMOBILE CO.
• Court: Texas Court of Appeals

95 S.W. 749

ROUTLEDGE v. RAMBLER AUTOMOBILE CO.

Court of Civil Appeals of Texas.

May 30, 1906.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by James Routledge against the Rambler Automobile Company. Judgment for defendant, and plaintiff appeals. Reversed.

J. R. Norton, for appellant.

FLY, J.

This is a suit instituted by appellant against appellee to recover damages arising from personal injuries inflicted on him through the negligence of appellee. Appellee filed general and special exceptions, and answered by general denial and plea of contributory negligence. The answer as to contributory negligence was as follows: "That the plaintiff and his co-passengers in said automobile, on the occasion of plaintiff's alleged injury, and just prior thereto, had each and all, plaintiff consenting and acquiescing therein, induced and encouraged the operator of said machine to run the same at a high and dangerous rate of speed, whereby and by reason of which it was impossible for the said operator to control the machine and to run around the corner in time to prevent said accident. That on said occasion the plaintiff and his co-passengers were intoxicated, or partially so, and by reason of said condition were anxious and willing to make fast time and a quick run, and the plaintiff sat in the same seat with and next to the operator of said machine, and he and the other passengers provoked and induced the operator to burn the air, and so moved thereto the said operator came to said corner and fence before he knew it, and so suddenly and unexpectedly as not to be able to control his machine and prevent said accident. That the conduct of plaintiff and that of his co-passengers to the end and for the purpose just stated, which was by and with plaintiff's knowledge, consent, and acquiescence, directly caused, contributed to, and helped produce said accident, and injury, if any, sustained by the plaintiff, which is not admitted but denied." The cause was submitted to a jury and resulted in a verdict and judgment for appellee.

The charge of the court did not present the defense made by the pleadings, and, when it was sought to have it presented by special charges, requested by appellee, it was refused. This action was taken, although the exceptions to the defense set up by appellee were overruled. Singular as it may seem, the jury found for appellee, although its defense was not presented to them in the charge. The evidence of appellee's witnesses, independent of the testimony of those who testified for appellant, clearly established negligence on the part of appellee. The accident occurred at a curve in the road about five miles from the city of San Antonio. The automobile was in charge of a chauffeur, named Street, who testified: "I have been around that loop a great many times. I was familiar with that road. * * * I had been around the road many times and knew this turn was there. I knew that I was going too fast to get around that turn. I willfully took these men to that turn at a rate that I knew it was impossible for that machine to turn the curve. I knew that I could not make the curve at the rate of speed I was going. I would have slowed up if I had known where I was. The reason I did not slow up was because, at that special time, I did not know where I was. If I had known where I was, I would have slowed up. If I had known where I was, regardless of what anybody in the machine said to me, I would have slowed that machine down and gotten around that curve at a safe speed. It would have made no difference to me if there had been 50 men in my machine urging me to...