Sims v. Dallas Ry. & Terminal Co.
| Decision Date | 09 December 1939 |
| Docket Number | No. 12813.,12813. |
| Citation | 135 S.W.2d 142 |
| Parties | SIMS et ux. v. DALLAS RY. & TERMINAL CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Action by Raymond L. Sims and wife against the Dallas Railway & Terminal Company for accidental injuries allegedly received by Mrs. Sims while a passenger on one of defendant's busses. From a judgment for defendant, plaintiffs appeal.
Affirmed.
Robert L. Hurt and W. F. Clark, both of Dallas, for appellants.
Burford, Ryburn, Hincks & Charlton and W. M. Taylor, Jr., all of Dallas, for appellee.
Appellants, Raymond L. Sims and his wife, Verna Sims, brought this suit against appellee Company to recover damages for alleged accidental injuries suffered by Mrs. Sims, while a passenger on one of appellee's buses, due to the alleged negligence of the operator of the bus in suddenly bringing the same to a stop, throwing Mrs. Sims forward off her seat onto the floor, causing the personal injuries for which recovery of damages was sought. Appellee answered, denying appellants' allegations, and plead specially that, if there was any unusual movement, jerk, or jolt of the bus, injuring Mrs. Sims as alleged, the same was caused by the act of some unknown third party driving an automobile against the rear end of the bus. At the conclusion of the evidence, the court instructed a verdict in favor of appellee; judgment was rendered accordingly, to which appellants excepted, gave notice of, and perfected this appeal.
The case is before us on one assignment of error, complaining of the action of the court in directing the verdict. The case will turn largely on the applicability, whether or not, of the doctrine of res ipsa loquitur, and this, in turn, will depend upon whether or not appellants based their cause of action on specific acts of negligence, or upon allegation of a general nature.
We think it must be conceded that, if the allegation had been simply that, while a passenger on appellee's bus, Mrs. Sims was thrown from her seat onto the floor of the bus and injured, because of a sudden stopping, lurch, or jerk of the bus, res ipsa loquitur would have applied, requiring appellee to explain, rebut, or otherwise overcome the presumption or inference that, the injury complained of was due to negligence. But, as appellants specifically alleged that, the operator of the bus negligently caused the movement of the bus to be suddenly and unexpectedly checked, with a lurch and jerk, throwing Mrs. Sims forward off her seat and onto the floor, causing the injuries for which damages were sought, we do not think the rule of res ipsa loquitur was applicable.
After alleging that Mrs. Sims was a passenger on appellee's bus, occupying a front seat just back of the driver, appellants allege that, the "bus was caused to stop quickly, suddenly and unexpectedly with a lurch and jerk, without giving the plaintiff, Verna Sims, reasonable opportunity to place herself in position to avoid being thrown violently to the floor thereof; that the forward motion of said bus was checked and stopped with a lurch and a jerk; that said plaintiff was not notified or warned of the intention of said operator to suddenly check the forward motion of said bus, or stop said bus or to cause same to be stopped; that there was no apparent reason for said unexpected momentary stop causing such jerk; that said bus and the operator thereof was in the exclusive control of defendant and its servants; that said acts, omissions and negligence herein alleged was the proximate cause of the injuries sustained by plaintiff; all of which acts of said operator in suddenly checking the speed of said bus was done without due regard for the safety of the passengers on said bus, the effect of which sudden jerk and stop threw plaintiff forward off her seat toward the front end of the car and in the direction she was facing, and onto the floor of said vehicle", causing the injuries of which complaint was made. Also that, "the bus operator was in exclusive control and management of said vehicle, and as such operator of said bus it became his duty to use all reasonable care and diligence in the operation of said bus to prevent injury to plaintiff who was a passenger thereon"; also, that the "Company's operator of said bus failed to use that degree of care and diligence, as herein alleged * * * required of them in the operation of said bus in this; that said operator of said bus, caused the forward motion of the bus to be checked with an unexpected and unusually severe jerk and stop for reasons unknown to plaintiff, in such manner as to throw plaintiff forward from her seat onto the floor of the bus", etc., causing the injuries of which complaint is made; alleging...
To continue reading
Request your trial
-
Robertson v. Southwestern Bell Tel. Co.
...task of alleging and proving actionable negligence against the defendant. Wichita Falls Traction Co. v. Elliott, supra; Sims v. Dallas Ry. & Terminal Co., 135 S.W.2d 142, (Tex.Civ.App.) 1939, In the case at bar, the doctrine cannot be applied Because appellee Southwestern was not in exclusi......
-
Mobil Chemical Co. v. Bell
...facts surrounding the accident, then there is no room for inferences and the Res ipsa doctrine is not applicable. See Sims v. Dallas Ry. & Terminal Co., 135 S.W.2d 142 (Tex.Civ.App.--Dallas 1939, no writ); W. Prosser, supra at 231--232. But where the evidence is inconclusive, the plaintiff ......
-
Roberts v. Texas & P. Ry. Co.
...398; Houston Gas & Fuel Co. v. Perry, Tex.Civ.App., 55 S.W.2d 901, 904, affirmed 127 Tex. 102, 91 S.W.2d 1052; Sims v. Dallas Ry. & Terminal Co., Tex.Civ.App., 135 S.W.2d 142; Penrod Drilling Co. v. Silvertooth, Tex.Civ.App., 144 S.W.2d 337, error dismissed, judgment correct, 30 Tex.Jur., N......
-
O'Day v. Sakowitz Bros.
...248, 81 S.W.2d 659 (1935); Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459 (Tex.Civ.App.1966, no writ); Sims v. Dallas Ry. & Terminal Co., 135 S.W.2d 142 (Tex.Civ.App.1939, no Appellants' ninth point of error complains of the trial court's refusal to admit in evidence Section 5......