Southland-Greyhound Lines v. Cotten

• Decision Date: 30 June 1932
• Docket Number: No. 2193.,2193.
• Citation: 55 S.W.2d 1066
• Parties: SOUTHLAND-GREYHOUND LINES, Inc., v. COTTEN.
• Court: Texas Court of Appeals

55 S.W.2d 1066

SOUTHLAND-GREYHOUND LINES, Inc., v. COTTEN.

No. 2193.

Court of Civil Appeals of Texas. Beaumont.

June 30, 1932.

Rehearing Denied December 28, 1932.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Orange County; C. G. Dibrell, Judge.

Suit by E. E. Cotten against the Southland-Greyhound Lines, Incorporated. Judgment in favor of the plaintiff, and the defendant appeals.

Affirmed.

H. M. Kinard, of Orange, Barnes & Barnes, of Beaumont, and John H. Awtry, of Dallas, for appellant.

Dies, Stephenson & Dies, of Orange, for appellee.

WALKER, J.

This was a suit by appellee, E. E. Cotten, against appellant, Southland-Greyhound Lines, Inc., for damages for personal injuries to his wife, and for damages to his automobile, resulting from a collision between one of appellant's buses and appellee's sport model Ford coupé, on the Beaumont-Orange Highway in Orange county on the evening of November 9, 1929, between 6 and 7 o'clock. Appellee had with him in his car his wife and young daughter about ten years old, and was driving from Beaumont to Orange. The collision occurred on the west side of Coale's creek, that is, on the Beaumont side, about eight miles from Orange. At this point there was a bridge across the creek, and on the west side of the creek were guard rails for some distance up to the bridge, on both sides of the highway. As appellee approached the bridge, a six-wheel log truck, loaded with logs, was parked on the highway on the west side of the bridge, headed towards Orange. The truck was near the guard rails, with the right wheels off the pavement, bogged down, and the left wheels on the concrete pavement. Immediately behind the truck, also headed towards Orange, was parked a Chevrolet car. This car was parked as near the guard rails as possible, with its right wheels off the pavement and the left wheels on the concrete pavement. It was dark and drizzling rain at the time. As appellee drove up to these parked cars, he saw a car approaching him from towards Orange and, believing that he did not have time to drive around these two parked cars in time to avoid a collision with the approaching car, he brought his car to a stop immediately behind the Chevrolet car. A moment or two after he stopped his car he was hit by appellant's bus, which had been following closely behind him for several miles. Upon trial to a jury appellant was convicted of actionable negligence in (a) driving at a dangerous rate of speed, (b) driving with defective brakes, and (c) driving without keeping a proper lookout. The jury found in appellee's favor on all defensive issues such as contributory negligence, sole proximate cause, etc., and assessed his damages at $30,167.50. From judgment in his favor for that sum the appeal was duly prosecuted to this court.

Appellant asserts that "the overwhelming preponderance of the evidence is contrary to an affirmative finding that the brakes on the bus in question were inadequate." This proposition is overruled. Mr. George A. Foreman, a passenger on the bus at the time of the collision, testified:

"I was sitting in the front. I was acquainted with the driver of the bus. I know his name, it was Norris, J. T. Norris. It was drizzling rain at the time this collision occurred. I have driven cars about fifteen years. I have had occasion to use brakes to bring them to a stop. * * * I saw the car ahead of us when it was brought to a stop, that is the car with which we collided. I saw that car stop. I would judge that car was several hundred yards ahead of us when it was brought to a stop. I would say it was over 100 yards, anyway, ahead of the bus. I state to the jury I was riding in the front part of the bus and saw the car ahead of us with which the bus collided when that car was brought to a stop. The bus driver drove up within a distance of about, I should think 75 feet of the car that was parked, or the car that was stopped ahead of him, and I thought he was going to stop, and he pushed his clutch, I guess it was his clutch in and did not seem to get any response from the car and he pulled his emergency brake, the emergency brake is the brake in the middle of the car, what I would call the emergency brake, and it did not stop the car any, the car just slided right on down and hit the car ahead of it. As he was going into it—after he started to stop and going down to the car, he said, `I am bound to hit, I am bound to hit them. I am bound to hit them.' He wasn't talking to me any more than he was anyone else. I was in the seat just back of him, looking right over his shoulder. Immediately after the collision occurred I had occasion to examine the brake of that bus. When the collision occurred, I don't know whether all got out of the bus or not, but several did. Mr. Norris did, and so did I, and one or two others, I don't know who they were—he talked to the folks in the car. I walked down and looked at the wreck where the car had hit—where the bus had hit the other car, and I come back to the bus before he did, and I just got in the seat, the driver's seat, and tried the brake to see if it would work, and it did not seem to—it pulled right on up easy, pulled clear on back without any resistance whatever. The driver and I talked about the collision coming in town after the wreck. I said `Norris, I don't think you are to blame for the accident.' I said `it is the fault of the car, you have got no brakes on the car,' and I said `If I was you, I would be mighty careful driving from here into Orange.' He says `I am going to be careful,' something similar to that, that is about what was said."

Since the finding on the issue of defective brakes is sustained by the evidence and is sufficient to support the judgment in appellee's favor, we pretermit a discussion of the propositions, challenging the finding that the speed of the bus was negligent and that the operator of the bus failed to keep a proper lookout at the time of the collision.

The jury was given the following definition of "proximate cause" and of certain terms used in the definition:

"You are instructed that the term `proximate cause,' as that term is used in the following issues, means a moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes a proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question and one that ought to have been foreseen by a person of ordinary care and prudence in the light of attending circumstances. It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question and but for which the said result would not have occurred.

"The term `moving cause,' as used in the above definition, means that cause which is present and acting in bringing about the result.

"The term `efficient cause,' as used in the above definition, means simply the working cause, or that cause which produced effects or results."

Error is assigned against this definition on the following grounds: (a) It did not include "the idea of continuous sequence unbroken by an independent cause"; (b) "it reduced proximate cause to a contributing cause, or merely to a concurring cause"; (c) it failed to submit the idea of "new and independent cause." As against these exceptions this definition of "proximate cause" was sustained in West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, on authority of Texas & P. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, and Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602.

The trial court's definition of "efficient cause" was taken from Words and Phrases, First Series, vol. 3, p. 2323, on authority of Pullman Palace Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215, and we think was sufficient to give the jury a reasonably satisfactory understanding of the meaning of the term. In Blanch v. Villiva (Tex. Civ. App.) 22 S.W.(2d) 490, we suggested certain definitions of this term, chosen by us from Words and Phrases, after a careful review of all the definitions cited by this excellent and most comprehensive work. But, though we did not select the definition given in this case, we do not think it should be construed as error.

As against the definition of "proximate cause," exceptions were also reserved to the court's refusal to define the term "natural consequence" and "probable consequence." These terms were not separately submitted in the charge, as the exceptions would suggest, but the one term "natural and probable consequence" was used. On authority of Rio Bravo Oil Co. v. Matthews (Tex. Civ. App.) 20 S.W.(2d) 342, we do not think it was error to refuse to define this term. In the case cited we held that "natural and continued sequence" were ordinary words of simple meaning and required no definition. For other authorities in point, see Texas & Southwestern Digest, Trial, where most of the cases on this point are digested.

Though requested by appellant, the trial court refused to submit to the jury the following issues of sole proximate cause: (a) The failure of the driver of the log truck and the driver of the Chevrolet car, as these cars were parked ahead of appellee's Ford coupé to have proper lights on their cars to warn traffic on the highway; (b) the act of the driver of the log truck and the driver of the Chevrolet car in parking their cars on the highway; (c) the failure of the driver of the log truck and the driver of the Chevrolet car to place signals or post a watchman in front of and in the rear of their cars to warn traffic that their cars were parked on the highway. As grounds of contributory negligence against appellee, the court refused to submit the following issues, requested by appellant: (a) The failure of appellee to have his car properly lighted in the rear; (b) as to whether or not appellee could have driven around the parked cars ahead of him at the time...