Southern Ice & Utilities Co. v. Richardson

• Decision Date: 21 April 1933
• Docket Number: No. 1104.,1104.
• Citation: 60 S.W.2d 308
• Parties: SOUTHERN ICE & UTILITIES CO. v. RICHARDSON et al.
• Court: Texas Court of Appeals

60 S.W.2d 308

SOUTHERN ICE & UTILITIES CO. v. RICHARDSON et al.

No. 1104.

Court of Civil Appeals of Texas. Eastland.

April 21, 1933.

Rehearing Denied May 19, 1933.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by Myrtle Richardson and husband against the Southern Ice & Utilities Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

W. B. Handley and C. J. Shaeffer, both of Dallas, for appellant.

Grisham, Patterson & Grisham, of Eastland, for appellees.

HICKMAN, Chief Justice.

The appeal is from a judgment in favor of appellees Mrs. Myrtle Richardson and husband, E. Richardson, against appellant Southern Ice & Utilities Company for $1,250 damages for personal injuries sustained by Mrs. Richardson in an automobile accident on the Bankhead highway between the towns of Eastland and Ranger. The case is briefed under seventeen propositions or points, and they will be considered in their order.

The first point is, in substance, that a request for peremptory instruction in appellant's favor made at the conclusion of the testimony should have been granted, because the uncontroverted evidence shows conclusively the absence of any actionable negligence on its part. The issue of negligence submitted to the jury was as follows: "Do you find from a preponderance of the evidence that the parking of defendant's car on the highway at the time and place in question was negligence?"

The jury found that it was, and that such negligence was a proximate cause of the injuries sustained by Mrs. Richardson. The collision occurred under the following circumstances:

Appellant's driver was proceeding east during a rainstorm. He began having some trouble with his car, probably caused by the rain, and it finally "went dead" on him. There was a shoulder to the right of the pavement from 6 to 8 feet wide, sodded with Bermuda grass. The shoulder was wet and slippery, but not so boggy as that he could not have safely run his car onto it. When the car "went dead," he left it standing on the paved portion of the highway. It was a light Ford coupé, and could have been pushed off on to the shoulder. The evidence would support the conclusion that, after the car began to stop, the driver could have turned to the right and parked same on the shoulder, or at least could have parked it so that the right-hand wheels would have been on the shoulder. After his car stalled, he began hailing passing motorists to send word in to headquarters for assistance. He succeeded in stopping one of the passing motorists and sent in the message by him, after which he sat in the seat of his car, parked on the highway, until the accident occurred. Appellees were driving from Eastland to Ranger at the rate of from 30 to 35 miles an hour, in a Chevrolet coach. For 3 or 4 miles they had been following at a distance varying from 25 to 100 feet a Ford car driven by J. W. Garner, the two cars maintaining the same average speed. On account of the rainstorm, Garner's vision was obscured, and he did not discover appellant's car parked on the highway until he was close upon it. Other vehicles were traveling in the opposite direction at that time, rendering it impossible for Garner to pass appellant's car to the left. He thereupon immediately applied his brakes, and was able to bring his car to a stop before colliding with the car of appellant. He had no time in the emergency to lower his window and signal to the appellees. At that time appellees' car was about 40 feet behind Garner's. As soon as they discovered that the latter had suddenly stopped, appellee E. Richardson, the driver, immediately applied his brakes, throwing his car into a skid on the wet pavement. On account of the approach of traffic from the opposite direction, he could not turn to the left. He sought to avoid a collision by turning to the right on to the shoulder, but was unable to clear the Garner car. The left fender of his car struck the Garner car, as a result of which Mrs. Richardson was thrown from her seat against the front end or side of her car, and the injuries complained of were inflicted.

The jury found that the action of the driver of appellant's car in parking same on the highway, under all the facts and circumstances, was negligence. A very dangerous situation was created when that car was left parked on the highway during a rainstorm, and we cannot say, as a matter of law, that the driver owed no duty to park on the shoulder instead of on the pavement. This was a question for the jury to determine in the light of all the circumstances, and point No. 1 is overruled.

The second point complains of the action of the trial court in overruling appellant's plea of misjoinder of Mrs. Richardson and its special exception to the petition on account of her being joined as a party plaintiff. In the case of T. C. Ry. Co. v. Burnett, 61 Tex. 638, it was held to be reversible error to overrule a special exception to the joinder of the wife in an action for personal injuries suffered by her during marriage. An examination of the authorities has led us to the conclusion that the decision in that case has never been followed, but that it has been practically overruled as an authority. In the case of Texas & Pacific Railway Co. v. Gwaltney, 2 Willson, Civ. Cas. Ct. App. § 684, page 602, the court, in speaking of the Burnett Case, states: "That case has been greatly modified, if not practically overruled, by the recent decision of our supreme court in the case of the San Antonio Street Ry. Co. v. Helm et ux. , decided May 8, 1885, in which it is held that it is only in rare exceptional cases that the joinder of the wife in such causes of action would be such error as that the overruling of the special exception, based on that ground, would cause a reversal of the judgment."

The Helm Case there referred to is reported in 64 Tex. 147.

In the case of Lee v. Turner, 71 Tex. 264, 265, 9 S. W. 149, 150, it is said: "Our courts have held that such joinder, though improper, is not reversible error. [San Antonio St.] Ry. Co. v. Helm, 64 Tex. 147, 149. The husband can sue alone, and it is the better practice."

Speer on Law of Marital Rights (3d Ed.) § 513, p. 628, states that such joinder is not reversible error, unless special injury be shown. Many of the Texas cases are there collated bearing upon the question. An examination of these authorities leads us to the conclusion that a case will not be reversed alone upon the improper joinder of a wife as a party plaintiff in an action for personal injuries suffered by her.

Points 3 to 8, inclusive, present the question that appellees' pleadings and the evidence convicted appellee E. Richardson, the driver of his car, of contributory negligence as a matter of law. It is claimed that he was guilty of contributory negligence in one or all of the following particulars: (1) In driving his car at such rate of speed as that he was unable to stop same within the distance between him and the Garner car; (2) in driving in such close proximity to the preceding car under the existing conditions; (3) in failing to observe the red stop light of the preceding car which appeared when the brakes were applied; and (4) in failing to have his car under control. These various grounds of contributory negligence were submitted to the jury and found in favor of appellees. Appellant likens the situation existing on account of the blinding effect of the rain to that which exists at night, and invokes the rule which has been declared in different jurisdictions that it is negligence as a matter of law to drive an automobile on a public highway in the dark at such speed that it cannot be stopped within the distance in which objects can be seen ahead of it. This question and kindred questions bearing on the issue of contributory negligence on the part of a driver of an automobile are fully annotated in A. L. R. in the following volumes: 28 A. L. R. 952; 37 A. L. R. 587; 44 A. L. R. 1403; 58 A. L. R. 1493; 61 A. L. R. 1115; 73 A. L. R. 1020. These annotations disclose a conflict in the decisions from the different...