Southland-Greyhound Lines v. Richardson, 1553-6352.

• Court: Texas Supreme Court
• Writing for the Court: Smedley
• Citation: Southland-Greyhound Lines v. Richardson, 86 S.W.2d 731, 126 Tex. 118 (Tex. 1935)
• Decision Date: 23 October 1935
• Docket Number: No. 1553-6352.,1553-6352.
• Parties: SOUTHLAND-GREYHOUND LINES, Inc., v. RICHARDSON, Judge, et al.

86 S.W.2d 731

SOUTHLAND-GREYHOUND LINES, Inc., v. RICHARDSON, Judge, et al.

No. 1553-6352.

Commission of Appeals of Texas, Section B.

October 23, 1935.

Original mandamus proceeding by the Southland-Greyhound Lines, Inc., against G. E. Richardson, District Judge, and another.

Writ of mandamus issued.

Dan Moody, of Austin, J. T. Adams and De Witt Bennett, both of Orange, John H. Awtrey, of Dallas, and Barnes & Barnes, of Beaumont, for relator.

K. W. Stephenson and H. M. Kinard, both of Orange, for respondents.

SMEDLEY, Commissioner.

Relator seeks the issuance of a writ of mandamus commanding respondent, the judge of the district court of Orange county for the First judicial district, to enter judgment on the verdict of the jury in a cause in said court, wherein respondent Jacquot sued relator for damages on account of personal injuries suffered in a collision on a public highway between an automobile driven by said respondent and a bus owned by relator.

The petition in the cause in district court alleged a number of acts of negligence on the part of the driver of the bus as proximate causes of the collision and resulting injuries. The defendant, the relator here, alleged several acts of the plaintiff Jacquot as constituting contributory negligence and as being proximate causes of the collision and injuries. Such acts of the plaintiff were pleaded both as contributory negligence and as sole proximate causes. The trial court submitted to the jury the several issues made by the pleadings, and all issues were answered except certain of them, which by reason of answers made to other issues were not required to be answered.

The jury by its answers found that the driver of defendant's bus was negligent in operating the bus at a rate of speed in excess of 15 miles an hour at the time he was attempting to pass plaintiff's car, in driving the bus immediately before and at the time of the collision at a dangerous rate of speed, and in failing to keep the bus under control, and found that each of such acts of negligence was a proximate cause of the collision. It further found by its answers that the plaintiff immediately before and at the time and place of the collision was driving his car at a rate of speed in excess of 15 miles per hour, and that plaintiff failed to keep a proper lookout, and that each of these acts constituted contributory negligence as that term was defined in the charge, and, further, that neither of said acts on the part of the plaintiff constituted the sole proximate cause of the collision.

Contributory negligence was thus defined in the charge: "`Contributory negligence' is such an act or omission on the part of the plaintiff, as amounting to a want of ordinary care and prudence, as concurring or co-operating with some negligent act or omission, if any, of defendant, is a proximate cause of the injury."

Defendant filed a motion that the court render judgment in its favor on account of the jury's findings of contributory negligence. Plaintiff filed and presented a motion in the following language:

"Now comes Isiah Jacquot, plaintiff in the above entitled and numbered cause, and moves the court to set aside the special verdict and findings of the jury herein upon the following grounds:

"1. The findings of the jury to the various and sundry issues submitted to it are conflicting in a great many respects and according to such findings it would have been impossible for the jury to have reached any verdict; that such findings are too indefinite, uncertain and conflicting to support a verdict or a judgment of this court.

"2. The findings of the jury conclusively show that it was its intention to render a verdict in favor of the plaintiff because said jury awarded the plaintiff the amount of Five Thousand ($5,000.00) Dollars in the way of actual damages, but the plaintiff says that the findings in answer to the Special Issues submitted are conflicting and could not and would not support the rendition of a judgment by the trial court in plaintiff's favor, or in favor of either party to this action.

"Wherefore, the premises considered, the plaintiff Isiah Jacquot prays that all of such findings and special verdict be set aside and that a new trial be granted or a mistrial be declared."

The trial court, after hearing the two motions, entered the following order: "On this, the 10th day of October, A. D. 1932, came on to be heard defendant's Motion for Judgment, and also came on to be heard the plaintiff's motion to set aside the special verdict and findings of the jury and to declare a mistrial herein; and the Court, after hearing said motions and the argument of counsel thereon, is of the opinion that defendant's motion to enter judgment should be over-ruled, and the same is hereby over-ruled, and that plaintiff's motion to set aside the special verdict and findings of the jury and to declare a mistrial should be in all respects sustained; and it is therefore ordered by the Court that said special verdict and findings of the jury be set aside and held for naught, and that a mistrial be entered and a new trial granted, to all of which the defendant then and there excepted."

The jury by its verdict found three acts of negligence on the part of the driver of defendant's bus, and that each of such acts was a proximate cause of the collision. It further found, however, that plaintiff was driving his car at a rate of speed in excess of 15 miles per hour, and that he failed to keep a proper lookout, and that each of such acts of the plaintiff constituted contributory negligence as defined in the charge. The issues submitted and answered were responsive to the pleadings, and by the answers were found all the facts in issue necessary to the rendition of judgment. Plaintiff's motion was, as it is described in the trial court's order, a motion "to declare a mistrial." It did not invoke the jurisdiction of the court to grant a new trial because of insufficiency of evidence to support the answers, or because of erroneous rulings upon the...