Stamper v. Scholtz, 8457.

• Decision Date: 11 June 1930
• Docket Number: No. 8457.,8457.
• Citation: 29 S.W.2d 883
• Parties: STAMPER et ux. v. SCHOLTZ et al.
• Court: Texas Court of Appeals

29 S.W.2d 883

STAMPER et ux. v. SCHOLTZ et al.

No. 8457.

Court of Civil Appeals of Texas. San Antonio.

June 11, 1930.

Rehearing Denied July 2, 1930.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by J. J. Scholtz and another against R. C. Stamper and wife. From a judgment for plaintiffs, defendants appeal.

Affirmed.

See, also, 17 S.W.(2d) 184.

R. G. Storey, of Dallas, and A. A. Seeligson and L. M. Patterson, both of San Antonio, for appellants.

Douglas & Black, Claud J. Carter, and Charles W. Anderson, all of San Antonio, for appellees.

FLY, C. J.

This is a suit for damages instituted by J. J. Scholtz for himself and his minor son, Joseph Scholtz, against R. C. Stamper and Mrs. R. C. Stamper, alleged to have resulted from the negligence of Mrs. Stamper in driving her automobile against and upon said Joseph Scholtz, at a time when he was riding his bicycle along a street in the city of San Antonio. The cause was elaborately presented for consideration of the jury through twenty-three special issues, and upon the answers judgment was rendered in favor of the father, J. J. Scholtz, for $1,000, and in favor of Joseph Scholtz in the sum of $5,000, and for a medical bill of $709.

The facts show that Mrs. Stamper was driving her automobile along a street, and that Joseph Scholtz was riding a bicycle along the same street in the same direction that the automobile was going. The collision occurred and the boy was seriously injured. The jury found that immediately before the accident happened Mrs. Stamper was operating the car at a dangerous rate of speed and that such act was negligence upon the part of Mrs Stamper, and that such negligence was the proximate cause of the injuries to Joseph Scholtz, that it was negligence upon the part of Mrs. Stamper when she failed to give the boy a signal of her approach and failed to keep a proper lookout, and that such negligence was a proximate cause of the injury to the boy. It was further found that the boy was not guilty of contributory negligence, and found that the accident was not unavoidable.

The statement of facts sustains the verdict of the jury. Mrs. Stamper admitted that she did not see the boy until she struck him and that she could have seen him a block ahead if she had been looking. She also stated that she was not much upset when she ran her automobile into the boy, she was looking back at the fire house when she struck Joseph Scholtz, and she was going fast at the time. She admitted she did not see the boy until just as she struck him. When she applied the brakes, after striking the boy, the car skidded twenty-five or thirty feet on a dry pavement, indicating a fast rate of speed.

The first, second, and third propositions assail the admission of expert testimony as to the rate of speed of the automobile, and base the objection to the testimony on the ground that there was no testimony as to the speed of the car. Two witnesses swore that it was running fast. Even in the absence of such testimony the evidence of the experts was permissible to show, from the circumstances detailed to them, as to what the probable speed of the automobile was at the time the boy was struck. Almost any person acquainted with the movements of cars when brakes are applied suddenly would be competent to give an opinion from the marks of the skidding and other circumstances as to the speed of the automobile. The three propositions are overruled.

The fourth, fifth, and sixth propositions assail the charge of the court as to the consideration to be given to contributory negligence in case of a minor. This question might be dismissed on the ground that there was no evidence of contributory negligence on the part of the minor, but we will consider the charge and the objections to it. The court instructed the jury as to what constituted contributory negligence, and then charged: "You are instructed in order for a minor to be guilty of contributory negligence, it is necessary for such minor to have had at the time of the accident sufficient discretion to understand and appreciate the nature and extent of the dangers encountered and of the means of avoiding the same,—and in this cause the question of whether Joseph Scholtz at the time of the accident possessed such degree of discretion is a question of fact to be decided by you under all the facts and circumstances shown by the evidence in this case." None of the objections to the charge are well founded. If the boy was shown to be above the average of boys of his age in intelligence, the question of his responsibility for contributory negligence was left to the jury, and they determined that he was not guilty of contributory negligence. He was not guilty of contributory negligence unless it was negligent for a boy to...