Sproles v. Rosen

• Decision Date: 24 July 1935
• Docket Number: No. 1495-6228.,1495-6228.
• Citation: 84 S.W.2d 1001
• Parties: SPROLES et al. v. ROSEN et ux.
• Court: Texas Supreme Court

84 S.W.2d 1001

SPROLES et al. v. ROSEN et ux.

No. 1495-6228.

Commission of Appeals of Texas, Section B.

July 24, 1935.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Frank M. Rosen and wife against Ed Sproles and another. Judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals [47 S.W.(2d) 331], and defendants bring error.

Affirmed.

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

Turner, Rodgers & Winn and M. B. Solomon, all of Dallas, for defendants in error.

TAYLOR, Commissioner.

Frank M. Rosen and wife sued Ed Sproles and T. H. Botsford for damages for personal injuries. The injuries were sustained by Mrs. Rosen while riding as a guest with her brother, George Schepps, in his automobile en route from Dallas to Fort Worth. Schepps was driving. One of the Sproles trucks was standing on the highway a few miles out of Dallas about 11 o'clock at night without either head or tail light burning, when Schepps' automobile collided with it from the rear, causing the injuries complained of. Judgment was for Rosen and wife, defendants in error here, upon findings made by the jury. The Court of Civil Appeals affirmed the judgment. 47 S.W.(2d) 331. The writ was granted upon application of Sproles and Botsford as plaintiffs in error.

The jury found the defendants had no tail light burning on the truck at the time in question. This was negligence as a matter of law. P. C. art. 798; Pennington Produce Co. v. Wonn (Tex. Civ. App., writ refused) 49 S.W.(2d) 482; City of Amarillo v. Rust (Tex. Civ. App.) 64 S. W.(2d) 821. It was further found this proximately caused the accident. The trial court entered judgment for plaintiffs, notwithstanding a general finding by the jury that Mrs. Rosen failed to use reasonable care for her own safety. This finding was made in response to special issue No. 50, which reads: "Do you find from a preponderance of the evidence that the plaintiff, Mrs. Frank M. Rosen, failed to use reasonable care for her own safety on the occasion in question?" Further findings made upon related issues are to the effect that such failure proximately contributed to the collision.

The first question presented is whether the court erred in disregarding the general finding that Mrs. Rosen failed to use ordinary care for her own safety, and in rendering judgment upon the verdict notwithstanding such finding. The allegations of defendants in which the negligence of Mrs. Rosen is charged reads: "Mrs. Frank M. Rosen knew or should have known that the driver of said car, George Schepps, was a very reckless and fast 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 the said George Schepps as to 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 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, all of which independent acts of negligence upon her part proximately caused or contributed to cause the accident and injuries complained of by the plaintiffs."

Properly interpreted, the allegations are to the effect that she was negligent in the particulars set out, and that all of such acts contributed to cause the collision. It appears from the concluding averment that it is independent acts of negligence which are alleged to be a contributing cause, and not the averment that she failed to use reasonable care. Such general averment is limited and controlled by the various acts of negligence specified. To the cases cited by the Court of Civil Appeals in support of this holding may be added the following: Pullman Co. v. Berkman (Tex. Civ. App.) 70 S.W.(2d) 839; Debes v. Greenstone (Tex. Civ. App.) 247 S. W. 289, and City of Fort Worth v. Ware (Tex. Civ. App.) 1 S.W.(2d) 464.

The trial court submitted separate special issues inquiring whether Mrs. Rosen was negligent in respect to the particularized acts of negligence...