Smallwood v. Parr

• Court: Texas Court of Appeals
• Writing for the Court: Grissom
• Citation: Smallwood v. Parr, 174 S.W.2d 610 (Tex. App. 1943)
• Decision Date: 16 July 1943
• Docket Number: No. 2381.,2381.
• Petition History: writ ref'd w.o.m.
• Parties: SMALLWOOD v. PARR et al.

Page 610

174 S.W.2d 610

SMALLWOOD v. PARR et al.

No. 2381.

Court of Civil Appeals of Texas. Eastland.

July 16, 1943.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by John Smallwood against Ed Parr and another to recover damages for death and injury to cattle struck by truck. Judgment for defendants, and plaintiff appeals.

Affirmed.

Scarborough, Yates & Scarborough, of Abilene, for appellant.

Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellees.

GRISSOM, Justice.

While John Smallwood was driving his cattle across the highway they were struck by a truck driven by S. H. Johnson, an employee of Ed Parr, acting within the course of his employment. Several head of cattle were killed and others were injured. Smallwood brought this suit to recover damages therefor against both Parr and Johnson. In addition to several grounds of primary negligence, among which were those grounds inquired about in issues submitted to the jury, as hereinafter shown, plaintiff alleged that if he were negligent, as alleged by defendants, that Johnson, the truck driver, discovered the cattle on the highway and knew and realized that the cattle were in a position of peril and thereafter "negligently failed to use the means at his command to prevent injuring said cattle, which said negligence was the direct and proximate cause of the damages and injuries sustained by Plaintiff * * *."

The jury failed to find that defendant's truck was without adequate brakes at the time of the collision, as charged by plaintiff. It found against plaintiff on all issues of primary negligence charged against defendants. The jury found that plaintiff was guilty of negligence in permitting his cattle to be on the paved portion of the highway at the time and place in question and in failing to have a halter on his bull when he drove him on the highway, and that each of said acts of negligence on the part of plaintiff was a proximate cause of the collision. The jury found the value of the cattle killed to be $6,700 and $400 damages to those injured but not killed. The jury answered "No" to issue 14, which was "Do you find from a preponderance of the evidence that Plaintiff failed to give a proper warning of the presence of his cattle on the highway to the driver of the defendant's truck in sufficient time that said truck could be reasonably stopped?"

The issues submitted and the jury's answers thereto relative to discovered peril are as follows:

7. "Do you find from a preponderance of the evidence that the Plaintiff's cattle were in a position of grave peril immediately before the collision?"

"Yes."

8. "Do you find from a preponderance of the evidence that Defendant's truck driver before the collision discovered that said cattle were in a perilous position?"

"Yes."

9. "Do you find from a preponderance of the evidence that the driver of Defendant's truck, after said discovery, if any, of said perilous position of the cattle, could by the use of all the means at his command and with safety to himself and his truck have avoided the collision in question?"

"Yes."

10. "Do you find from a preponderance of the evidence that it was negligence for the Defendant's truck driver to fail to avoid the collision as inquired about in the foregoing issue after the discovery of the perilous position of the cattle?"

"No."

11. "Do you find from a preponderance of the evidence that the negligence, if any, inquired about in the foregoing special issue was a proximate cause of the collision in question?"

(Not answered.)

Judgment was rendered on the verdict that plaintiff take nothing, and he has appealed.

The parties will be referred to as plaintiff and defendants, as they appeared in the trial court.

Plaintiff's first point is: "The error of the trial court in refusing to enter judgment for appellant on the verdict showing elements of discovered peril." Plaintiff contends that the answers to Issues 7, 8 and 9 establish defendant's liability under the doctrine of discovered peril, and that the answer to Issue 10 was an erroneous attempt by the jury to pass upon a question of law, made such by reason of their previous answers to Issues 7, 8 and 9. In other words, plaintiff says that when the jury found (7) that plaintiff's cattle were in a position of peril; (8) that Johnson "before the collision discovered that said cattle were in a perilous position"; and (9) that Johnson "after said discovery * * * of said perilous position of the cattle, could by the use of all the means at his command and with safety to himself and his truck have avoided the collision * * *", all of the elements of discovered peril prerequisite to a recovery by plaintiff had been determined in plaintiff's favor; and that such findings established conclusively the negligence of the defendants. Plaintiff also contends that the answer to Issue 10, that it was not negligence for Johnson to fail to avoid the collision after discovery of the perilous position of the cattle, was either an immaterial answer, not in conflict with the rest of the verdict, or it was an attempt by the jury to answer a question of law. That, in either event, it had no effect upon the remainder of the verdict. Plaintiff insists that the Supreme Court in Gulf, C. & S. R. Co. v. Lankford, 88 Tex. 499, 31 S.W. 355, 356, has held that Issue 10, that is, whether Johnson's failure to avoid the collision, after discovery of the perilous position of the cattle, became a question of law. That defendants' negligence was established as a matter of law by the answers to Issues 7, 8 and 9.

Although there are statements in cases cited by plaintiff that appear to support his contention that defendants' liability is established by the answers to Issues 7, 8 and 9, we are of the opinion that the decisions of our Supreme Court are to the effect, as applied to the facts of the instant case, that when Johnson, the truck driver, discovered the perilous position of plaintiff's cattle, Johnson's duty to use all the means within his power to prevent the accident, consistent with his own safety, was not absolute. That the legal duty imposed thereby on Johnson was only to exercise ordinary care to use all the means available to avoid the collision. In other words, a finding that Johnson's failure to exercise ordinary care in the use of the means at hand to avoid the collision was a prerequisite to plaintiff's recovery, unless such negligence was established by the undisputed evidence. Johnson's negligence was not so established. His testimony raised the issue. His testimony, if believed, shows that he did everything reasonably possible to stop the truck before the collision.

In Gulf, C. & S. F. R. Co. v. Lankford, 88 Tex. 499, 503, 31 S.W. 355, the Supreme Court said:

"No effort was made to stop or divert the cars to another track, or avoid the injury, by defendant's servants.

"After giving correct charges upon the issues of defendant's negligence and plaintiff's contributory negligence, the court charged the jury as follows: `If you believe from the evidence that plaintiff or his wife failed to exercise ordinary care, and that such failure contributed to the injury of plaintiff's wife, yet if you should find that before plaintiff's wife received her injuries, if she was injured, it became known to either of the agents or servants of the defendant, who were engaged in operating said engine and cars, that there was about to be a collision between said cars and the wagon in which plaintiff and his wife were riding and if this became known to such agent or servant in time for him to have stopped said cars or to have diverted them from the track upon which they were running, and if he could have done so by the means then at hand in time to have prevented said injuries, then you will find for the plaintiff.'

"It is urged that this charge is upon the weight of the evidence in that it virtually instructs the jury that a failure to stop or divert the cars would be negligence, whereas the question, whether such failure was negligence, under all the circumstances, should have been left to the jury.

"The question, then, is, did the court in said charge invade the province of the jury, and determine for them a question of fact which, under the law and the evidence, they could have rightfully determined otherwise? or, in other words, could the jury, under the evidence, after finding the facts they were required to find by the charge in order to find for plaintiff, have rightfully refused to find, that a failure to stop or divert the cars was negligence?

"An analysis of the charge shows that the jury were required to find from the evidence the following facts: (1) That, before plaintiff's wife was injured, it became known to one of defendant's servants operating the train that there was about to be a collision between the train and wagon; (2) that such fact was known to such servant in time for him to have stopped or diverted the cars; (3) that by the use of the means then at his command he could have stopped or diverted them in time to have prevented said injuries.

"The verdict must be taken as establishing each of said facts. In addition thereto, the undisputed evidence shows that neither of the servants of defendant engaged or concerned in moving said cars made any effort whatever to avoid the collision, which, according to the facts above found, they knew was going to happen.

"Stated briefly, the facts, found and undisputed as aforesaid, shows that a servant of the company engaged in propelling a car knows that there is an impendent collision which, but for his intervention, will happen between such car and a wagon, in which a number of persons are riding, which collision he has the means at hand to prevent by stopping or diverting the car, but makes no effort to do so, and the collision consequently occurs.

"Could the jury, with these facts established, rightfully have refused to find such servant negligent? We...