Seinsheimer v. Burkhart

• Decision Date: 03 March 1936
• Docket Number: No. 10181.,10181.
• Citation: 93 S.W.2d 1231
• Parties: SEINSHEIMER et al. v. BURKHART.
• Court: Texas Court of Appeals

Page 1231

93 S.W.2d 1231

SEINSHEIMER et al. v. BURKHART.

No. 10181.

Court of Civil Appeals of Texas. Galveston.

March 3, 1936.

Rehearing Denied April 23, 1936.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Zora Ann Burkhart against J. F. Seinsheimer and others and Joe Seinsheimer and others. Judgment for plaintiff, and defendants Joe Seinsheimer and others appeal.

Affirmed.

A. C. Wood, of Houston, and Terry, Cavin & Mills and Joyce Cox, all of Galveston, for appellants.

Allen, Helm, Jacobs & Settegast, of Houston, for appellee.

LANE, Justice.

This suit was brought by Zora Ann Burkhart, hereinafter, for convenience, referred to as Miss Burkhart, and as appellee, against Joe Seinsheimer and wife, Blanche Fellman Seinsheimer, Mr. and Mrs. J. F. Seinsheimer, and G. D. Flood, Jr., to recover for personal injuries suffered by her as the result of being struck by an automobile driven by G. D. Flood, Jr., in the city of Houston on the 10th day of June, 1931, it being alleged that the collision occurred at the intersection of Main and Walker streets in said city.

As against G. D. Flood, Jr., plaintiff alleged that at the time of the collision he was driving the car at an excessive rate of speed and without proper control, failing to keep a lookout, and in crossing Main street at its intersection with Walker avenue when signal lights were so burning as to make such crossing unlawful under an ordinance of the city, and many other acts of negligence not necessary to be here stated.

As against J. F. Seinsheimer and wife and Joe Seinsheimer and wife, appellee alleged that J. F. Seinsheimer, Jr., was riding in the car with G. D. Flood, Jr., and was the agent of his parents, J. F. Seinsheimer and wife, and his grandparents, Joe Seinsheimer and wife, acting in the scope of his duty and in furtherance of the purposes, business, and pleasure of said defendants, and was negligent in failing to keep a proper lookout, in failing to warn and remonstrate with G. D. Flood, Jr., in intrusting the operation of the automobile to G. D. Flood, Jr., who was incompetent to drive, etc. In addition, it was alleged that all parties were engaged in a joint enterprise; also that the adult defendants were negligent in intrusting the car to J. F. Seinsheimer, Jr., who was incompetent, reckless, etc., and in intrusting the same to G. D. Flood, Jr., who was incompetent, reckless, etc. Damages were sought in the sums of $44,000 actual, and $5,000 exemplary.

The defendants filed joint answer, G. D. Flood, Jr., answering through his father and guardian ad litem, G. D. Flood. They denied generally and alleged that plaintiff was walking across Walker street without keeping a proper lookout and while the signal lights were so burning, that to enter into the intersection of Walker street was prohibited by the ordinances of the city of Houston; that she walked into said intersection without giving automobiles in the intersection reasonable opportunity to clear after the signal lights controlling Walker street traffic had turned from red to amber, and that she was walking across Walker street diagonally and not in the regular lane of traffic, contrary to the ordinances of the city of Houston, etc. Each of her acts and omissions was alleged to constitute contributory negligence as well as sole proximate cause of her injuries.

The foregoing statement is substantially a copy of the statement of the acts of negligence charged by plaintiff to the defendants in appellants' brief, same being accepted as correct by counsel for appellee in their brief, wherefore we accept it as sufficient for a presentation of the issues presented by this appeal.

The cause was tried before a jury, and upon the close of the evidence, each and all of the defendants requested the court in writing to instruct the jury to return a verdict for them. All of such requests were overruled by the court.

After such refusal, the court submitted 65 special issues to the jury and instructed them to answer such issues from the preponderance of the evidence, "that is, the greater degree and weight of the credible evidence * * * without reference to the effect that your answers may have upon the judgment to be rendered in the case."

In answering the special issues submitted, the jury found:

(1) That the driver of the Seinsheimer car failed to maintain a reasonable lookout for pedestrians who might be crossing the intersection in question just prior to and at the time of striking the plaintiff; that such failure was negligence and a proximate cause of the injuries sustained by plaintiff.

(2) That the driver of the car failed to give any warning of the approach of the car as it crossed the intersection in question; that such failure was negligence and a proximate cause of the injuries sustained by plaintiff.

(3) That the failure of the driver of the car to stop the same before striking plaintiff was negligence; that such failure was a proximate cause of plaintiff's injuries.

(4) That the driver of the car failed to slacken the speed of the car just prior to striking plaintiff; that such failure was negligence and a proximate cause of plaintiff's injuries.

(5) That the driver of the car, just prior to striking plaintiff, was driving the car at a dangerous rate of speed; that the driving at such rate of speed was negligence and a proximate cause of plaintiff's injuries.

(6) That just prior to striking plaintiff the driver of the car was driving the same at a speed in excess of 20 miles per hour; that the driving of the car in excess of 20 miles per hour was a proximate cause of plaintiff's injuries.

(7) That the driver of the car operated the same into the intersection in question when the amber light was displayed facing him, and that such operation was a proximate cause of plaintiff's injuries.

(8) That the driver of the car operated the same over said intersection while the red light was displayed facing the car; and that such act was a proximate cause of plaintiff's injuries.

(9) That the driver of the car failed to have the same under reasonable control, that is, under such control as a person of ordinary prudence would maintain under the same or similar circumstances; that such failure was negligence and a proximate cause of plaintiff's injuries.

(10) That the car in question was the family car of defendant, Joe Seinsheimer, that is, one maintained for the pleasure, comfort, and convenience of the household and dependent members of the family of the owner, and that it was being used as such family car.

(11) That at the time of the collision in question the car was being driven by G. D. Flood, Jr., with the consent of defendant, Mrs. Joe Seinsheimer.

(12) That the car at the time of the collision was being used by J. F. Seinsheimer, Jr., in furtherance of the purposes of Mrs. Joe Seinsheimer and with her consent.

(13) That G. D. Flood, Jr., at the time of the collision was incompetent to drive at the time Mrs. Seinsheimer consented for him to drive the car; that the giving of such consent was negligence and a proximate cause of plaintiff's injuries.

(14) That J. F. Seinsheimer, Jr., failed to keep a proper lookout for pedestrians crossing Walker avenue just prior to the collision; that such failure was negligence and a proximate cause of plaintiff's injuries.

(15) That J. F. Seinsheimer failed to remonstrate with G. D. Flood, Jr., about the speed at which he was driving; that his failure to do so was negligence and a proximate cause of plaintiff's injuries.

(16) That at the time plaintiff was injured by the car in question, Mrs. Joe Seinsheimer and G. D. Flood, Jr., were engaged in a joint enterprise.

(17) That at the time of plaintiff's injury Mrs. Joe Seinsheimer and J. F. Seinsheimer were engaged in a joint enterprise.

(18) That at the time plaintiff was injured the car in question was being driven in furtherance of such joint enterprise.

(19) That the injury sustained by plaintiff was not sustained as the result of an unavoidable accident.

(20) That plaintiff, Miss Burkhart, just before being struck by the car did not fail to keep a reasonable lookout to discover automobiles that might be approaching from the west on Walker avenue.

(21) That they did not find that Miss Burkhart stepped off the curb and onto the surface of Walker avenue at a time when the signal light on the northeast corner of the intersection of Main street and Walker avenue facing south was showing red.

(22) That Miss Burkhart did not walk, or attempt to walk, across the intersection of Walker avenue with Main street when a red light was displayed facing her on the northeast corner of Main street where Walker avenue intersects said street.

(23) That Miss Burkhart did attempt to cross Walker avenue by walking over and upon a portion of the street not included within the lines of the sidewalk, but that such act did not proximately cause or contribute to cause her injury.

(24) That after the light that Miss Burkhart was facing on Main street turned green she did not fail to give an automobile or automobiles which had entered Main street facing a green light, and which were then attempting to cross Main street on Walker avenue, time to clear Main street before she proceeded on across Walker avenue.

(25) That Miss Burkhart did not, immediately prior to being struck by the car, walk more hastily across Walker avenue than a person of ordinary prudence would, under the same or similar circumstances, have walked.

(26) That $14,000 will fairly and reasonably compensate the plaintiff, Miss Burkhart, for her injuries proximately caused by the collision in question, exclusive of the reasonable value of necessary doctors, surgeons, nurses, medical and hospital services, rendered to plaintiff in the treatment of her injuries, which value is $601.

Upon the return of the verdict, the defendants, G. D. Flood, Jr., and Joe Seinsheimer and wife, each filed their...