Sproles v. Rosen

• Decision Date: 06 February 1932
• Docket Number: No. 10920.,10920.
• Citation: 47 S.W.2d 331
• Parties: SPROLES et al. v. ROSEN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W.2d 331

SPROLES et al. v. ROSEN et ux.^*

No. 10920.

Court of Civil Appeals of Texas. Dallas.

February 6, 1932.

Rehearing Denied March 5, 1932.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by Frank M. Rosen and wife against Ed Sproles and another. From a judgment in favor of plaintiffs, defendants appeal.

Affirmed.

Frank Rawlings, of Fort Worth, and Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for appellants.

Turner, Rodgers & Winn, of Dallas, for appellees.

JONES, C. J.

In a suit in a district court of Dallas county, appellees, Frank M. Rosen and wife, Mrs. Frank M. Rosen, recovered judgment against appellants, Ed Sproles and T. H. Botsford, in the sum of $2,934.40, with interest at the rate of 6 per cent. per annum from date of judgment. The term "appellee" will refer to Mrs. Rosen, and appellants will be referred to by their individual names. An appeal has been duly prosecuted to this court and the necessary facts are as follows:

During the time under inquiry, Ed Sproles owned and operated the Sproles Motor Freight Line, and Botsford was employed as an operator of the freight trucks. Sproles resided in Tarrant county, Botsford in Dallas county, and appellees in El Paso county.

In March, 1929, appellee was visiting her sister, Mrs. George Schepps, in the city of Fort Worth, and on the afternoon of March 14, 1929, Mr. and Mrs. George Schepps, with appellee as their guest, visited the family of Julius Schepps in the city of Dallas, a brother of George Schepps. On the evening of said March 14th, Botsford, working under a duty of his employment, undertook to operate one of Sproles' loaded trucks from Dallas to Fort Worth, and at a place on the highway, a short distance east of the town of Grand Prairie, was compelled to park the truck because of leakage of air from one of its tires. The truck was parked on the right, or north, side of the highway, but remained on the pavement. The truck could not be immediately fixed and Botsford was compelled to wait until help could come from Fort Worth. During the time the truck was parked, neither head nor tail lights were showing.

About 10:30 o'clock p. m. the same day, the Schepps, with appellee as their guest, started from Dallas on their return trip to Fort Worth, with George Schepps operating the Buick coupé owned by him. Schepps was on the left side of the automobile, Mrs. Schepps seated next to him, and appellee on the outer side of the one seat with which the coupé was equipped. Before reaching the point where the truck was parked, the highway passes under an overhead crossing of the Texas & Pacific Railroad. Prior to reaching this crossing, the highway extends west on the south side of the railroad, and, as it nears the crossing, it turns north at almost right angles, passes in a northerly direction under the railroad, and so continues for some two or three hundred feet, when it again makes a sharp turn to the west. Not far beyond this turn in the highway, the truck was parked. The night was very dark, and neither Schepps nor appellee saw the parked truck until just before the collision. As a result of the collision, appellee received serious injuries, and soon thereafter was carried to the town of Grand Prairie for first aid treatment, and then carried to Baylor Hospital in the city of Dallas, where she remained under the care of physicians and nurses for about eleven days, when she was moved from the hospital in an ambulance to the Union Terminal Station in Dallas, placed on a train and carried to her home in El Paso, where she was confined to her bed for a period of four months under the care of a physician and a special nurse. The Buick automobile was demolished and the rear of the truck damaged by the collision. At the time of the collision, as found by the jury on disputed evidence, the automobile was being operated at a rate of speed in excess of thirty-five miles per hour.

The petition filed in the suit, instituted against Sproles and Botsford as being jointly liable for the injuries, alleged various grounds of negligence as a basis for recovery, and those grounds, supported by evidence, were submitted to the jury in the form of special issues. All of the grounds of negligence alleged and submitted were on conflicting evidence, the evidence of appellees tending to support each specific allegation of negligence, and the evidence of appellants tending to disprove each of such allegations. All of the special issues submitting these specific allegations of negligence were found in favor of appellants, except one, which forms the basis for this judgment. On this issue the jury found that there was no tail-light showing on the truck at the time of the collision, and that the failure to show such a light was a proximate cause of appellee's injuries. These findings of the jury are adopted as the findings of this court.

Appellants alleged that each of various acts of George Schepps, while operating the car, was negligence and the sole proximate cause of the injury. The jury found the existence of some of these specific acts of negligence alleged by appellants, but in each instance found that such act was not the sole proximate cause of the injuries. These findings are adopted as the findings of this court on these issues. Special acts of contributory negligence on the part of appellee were pleaded by appellants, and, for a better understanding of the main issue of this appeal, that portion of appellants' pleadings will be quoted in full as follows: "That the plaintiff, Mrs. Frank M. Rosen, knew or should have known that the driver of said car, George Schepps, was a very reckless driver and that it was dangerous to ride with the said George Schepps without keeping a lookout and exercising ordinary care for her own safety to discover objects in the highway; that notwithstanding said knowledge, the plaintiff wholly failed to use ordinary care for her own safety and was negligent in failing to keep a lookout in the course in which said automobile was traveling, and in failing to warn said George Schepps of the rate of speed at which he was driving said car, and in failing to warn the said George Schepps of the presence of said truck on the highway at a time when she knew, or ought to have known, that the said George Schepps was not keeping a lookout nor observing the highway in the direction in which he was going; in riding in said car knowing that the lights were insufficient to illuminate the highway for a sufficient distance ahead of said car to permit the same to be stopped upon discovery of any obstacle in the highway; and riding in said car knowing or chargeable with said notice that the brakes of said car were insufficient to stop the same within space illuminated by the lights on said car, and in wholly failing to use any care whatsoever for her own safety under the circumstances alleged by her in her petition. * * *"

It thus appears that, by specific allegations, appellants plead failure of appellee to exercise ordinary care for her own safety, in several enumerated particulars, viz.: (1) In failing to keep a lookout in the course in which said automobile was traveling; (2) in failing to warn George Schepps as to the speed he was traveling and as to the presence of the truck on the highway; (3) in riding in the automobile knowing that the lights were insufficient properly to illuminate the highway; and (4) in riding in said car knowing that the brakes were insufficient to stop the same within the space illuminated...