South Texas Coaches v. Eastland

• Decision Date: 18 January 1937
• Docket Number: No. 12077.,12077.
• Citation: 101 S.W.2d 878
• Parties: SOUTH TEXAS COACHES, Inc., v. EASTLAND et al.
• Court: Texas Court of Appeals

Page 878

101 S.W.2d 878

SOUTH TEXAS COACHES, Inc., v. EASTLAND et al.

No. 12077.

Court of Civil Appeals of Texas. Dallas.

January 18, 1937.

Rehearing Denied February 13, 1937.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by Mrs. Mary L. Eastland and others against the South Texas Coaches, Incorporated. From a judgment for the plaintiffs, the defendant appeals.

Partly affirmed, and partly reversed and rendered.

Price & Christopher, of Fort Worth, and Eckford & McMahon, of Dallas, for appellant.

D. A. Frank and Muse & Muse, all of Dallas, for appellees.

LOONEY, Justice.

Mrs. Mary L. Eastland, widow of A. M. Eastland, and Mrs. Mary Ella Murphy, only surviving child of deceased, joined by her husband, Walter Murphy, sued South Texas Coaches, Inc., to recover both actual and exemplary damages for the death of the husband and father, from injuries received in a collision between a five-passenger sedan in which he was traveling and a passenger bus operated by defendant, alleged to have resulted from defendant's negligence.

The material issues framed by pleadings are fairly indicated by the questions propounded to the jury, in response to which they found that, at and immediately prior to the collision, defendant's bus was being operated at a speed in excess of forty miles per hour, and that same was a proximate cause; that the failure of the driver of defendant's bus to slow down its speed to a reasonable rate was negligence and a proximate cause; that the bus was being driven on the left side of the highway; that such act was negligence and a proximate cause; that A. M. Eastland, deceased, was discovered to be in a perilous position by defendant's bus driver in time so that, by the exercise of ordinary care in the use of all the means at hand consistent with safety to himself and passengers in the bus, he could have avoided the collision, but that he failed to exercise ordinary care, and that such failure was a proximate cause; that at and immediately prior to the collision, the bus was being operated on a schedule promulgated by defendant requiring the driver to operate at a speed in excess of forty miles per hour; that such operation was a proximate cause, and a reckless disregard of the rights of the deceased, amounting to gross negligence. The jury also found that the collision was not the result of an unavoidable accident; that immediately preceding the collision, deceased was not operating his car at a speed in excess of 45 miles per hour; that he did not fail to keep a proper lookout for the bus as he approached the intersection; that he did not fail to slow his car down to a reasonable rate of speed as he approached the intersection; that, in failing to sound his horn as he approached the intersection, he was not guilty of negligence; that he did not attempt to turn or change the course of his car on the public highway at the intersection, and did not fail and refuse to slow the speed of the car to a reasonable rate after discovering defendant's bus on the highway.

The jury found actual damages, as follows: In favor of Mrs. Mary L. Eastland (widow), $13,000; in favor of Mary Ella Murphy (daughter), $5,000; in favor of Mrs. Mary L. Eastland for funeral expenses of deceased, $529.25, and in her favor for other expenses incurred on account of the injury to and death of her husband, as follows: For ambulance $25, for services of physician (Dr. Nash) $25, and for hospitalization $25, for services of a nurse $14, and for a tombstone as a marker for the grave of the deceased $62.50. In addition to actual damages the jury found exemplary damages in favor of Mrs. Mary L. Eastland $1,100, and in favor of Mrs. Mary Ella Murphy $400.

The court rendered judgment for plaintiffs in accordance with the verdict of the jury; the defendant gave notice of and perfected its appeal, superseding the judgment, after its motion for a new trial was overruled.

The case is before us on 118 assignments, reduced to 55 propositions. These will not be discussed in the order presented, and some, deemed without merit, will not be discussed at all.

Appellant insists that the court erred in failing to instruct a verdict in its favor, against Mrs. Mary Ella Murphy (and husband), in that, being an adult married daughter of deceased, 36 years of age and not dependent upon him, in the absence of evidence showing that, after marriage she had ever received anything of value from her father, or a reasonable probability that he would have contributed anything of value to her had he lived, she was not entitled to recover.

We sustain this contention. Damages recoverable by a married daughter for the death of her father, under the provisions of the statute, are for the pecuniary loss sustained, and not as solace for grief or the loss of society. As disclosed, Mrs. Murphy was in no wise dependent upon her father, hence in the absence of a showing of a reasonable expectation of receiving from him future pecuniary benefits had he lived, she failed to make a case for either actual or exemplary damages; therefore, as to her, the court should have instructed a verdict for appellant. International & G. N. R. Co. v. De Bajligethy, 9 Tex.Civ.App. 108, 28 S.W. 829, 830; Missouri, K. & T. R. Co. v. James, 55 Tex.Civ.App. 588, 120 S.W. 269; McGown v. International & G. N. R. Co., 85 Tex. 289, 20 S.W. 80; Rio Grande, E. P. & S. F. R. Co. v. Lucero (Tex.Civ.App.) 54 S. W.(2d) 877; St. Louis, A. & T. R. Co v. Johnston, 78 Tex. 536, 15 S.W. 104, 106; St. Louis S. W. R. Co. v. Bishop, 14 Tex. Civ.App. 504, 37 S.W. 764; Texas Employers' Ins. Ass'n v. Birdwell (Tex.Civ. App.) 39 S.W.(2d) 159, 160.

Defendant contends (proposition No. 1) that the trial court erred in refusing its request for an instructed verdict, because deceased was guilty of negligence, causing or contributing to his death, as a matter of law.

We will here summarize the evidence bearing upon the issues of negligence and contributory negligence, the cumulative effect of which being substantially as follows: The collision was between a passenger bus belonging to defendant and a five-passenger sedan driven and occupied alone by deceased. The bus was of about 25-passenger capacity, weighed about 11,000 pounds unloaded, and at the time was carrying the driver and 5 to 7 passengers; the sedan weighed about 3,000 pounds. The collision occurred a few miles west of the City of Dallas at the intersection of Industrial boulevard and West Mourland drive, public highways; however, Industrial boulevard carried the most traffic. These highways cross at practically right angles, the boulevard runs east and west, and West Mourland drive north and south. The collision occurred slightly after 6 p. m. June 30, 1933, while the bus was proceeding east toward Dallas on Industrial boulevard, and deceased was driving north on West Mourland drive. The intersection is in the midst of open territory, without trees, buildings, or other objects to obstruct the view of either driver; in fact, the driver of the bus testified that he saw the Eastland car approaching at a distance of at least 200 yards from the intersection. Those who witnessed the collision were three passengers in the bus — Mr. Lloyd, Miss Lou Blumberg, Mr. Kuttler — and the driver of the bus (Mr. Easley), also a Mr. Miller, who was in a car driving west on Industrial boulevard, facing the bus; the section of West Mourland drive on which Mr. Eastland was driving being in plain view, to the left of Mr. Miller. The testimony is conflicting at points, but justifies the conclusion that, as it approached the intersection, the bus was driven at an excessive and illegal rate of speed, that is, between 55 and 60 miles per hour; that this speed was not diminished nor the signal horn sounded, until the bus was within from 100 to 150 feet of the intersection; and that, simultaneously with the sounding of the horn, the driver made his first effort to slow down. There is also conflict in the evidence as to the speed of the Eastland car as it approached the intersection, and as to whether or not deceased hesitated and turned his car somewhat to the left and back to the right, and then accelerated speed and went forward. However that may be, the evidence warrants the conclusion that deceased was not traveling in excess of 45 miles per hour; that he did not lessen or slacken speed or hesitate or turn as he reached the intersection, but proceeded to and upon the intersection, and had passed its center when struck by the bus. The evidence is ample to sustain the conclusion that, had the bus driver slackened speed, as much even as five miles per hour, or turned the course of the bus to the right three or four feet, which could have been done with safety, the collision would not have occurred. The left front of the bus struck the left rear portion of the Eastland car, lifted it from the surface, and knocked it clear of the pavement from 25 to 30 feet, where it was found upright, although turned around and in a wrecked condition, as revealed by the photographs, attached to the statement of facts. Mr. Eastland, being thrown from the car, was found lying about 15 feet east of the car, in an unconscious condition and practically dead, expiring soon after being carried to the hospital. The bus was running at such speed that, after the collision, it left the pavement diagonally in a northeast direction on the left side of the road, passing over a shallow ditch, and came to rest about 220 yards from the point of collision.

As bearing upon the relative rights and obligations of the drivers of these vehicles, it is worthy of note that defendant was required by law to have its bus equipped with a suitable horn or other signaling device, and it was the duty of the driver, whenever necessary, to sound the signal as warning of danger (P.C. art. 796); furthermore, it was the duty of the bus driver, approaching the intersection in question, to have...