Stinson v. Boulevard Undertaking Co., 10139.

• Decision Date: 27 February 1936
• Docket Number: No. 10139.,10139.
• Citation: 91 S.W.2d 1172
• Parties: STINSON v. BOULEVARD UNDERTAKING CO.
• Court: Texas Court of Appeals

Page 1172

91 S.W.2d 1172

STINSON v. BOULEVARD UNDERTAKING CO.

No. 10139.

Court of Civil Appeals of Texas. Galveston.

February 27, 1936.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by O. T. Stinson against the Boulevard Undertaking Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Shields & Johnson, of Houston, for appellant.

Baker, Botts, Andrews & Wharton, of Houston, for appellee.

GRAVES, Justice.

At about 7 o'clock in the morning, when there was little or no traffic on the street in that vicinity, the appellant, while driving his motorcycle north on Main street in the city of Houston, collided with an ambulance of the appellee that was being driven by one of its agents westward on Texas avenue at a point within the intersectional area of those two streets; as a proximate result he sustained injuries to himself as well as to his motorcycle, and sued the appellee for damages therefor, alleging that the collision had been proximately caused by the negligence of the appellee's driver in a number of specified particulars; in answer, the appellee denied that its driver had been guilty of negligence in any respect, and countered with the specific declaration that the injuries complained of had been caused wholly by the contributory negligence of the appellant himself in many likewise specified details; after the evidence of both sides had been received, the trial court submitted the cause to a jury upon thirty-two special issues, which embodied the material questions of fact raised by the pleadings and the testimony; in response thereto, the jury returned a verdict in effect acquitting the appellee of any of the negligence charged against it, except as to the speed of its ambulance, and convicting the appellant, at least in the main, of the contributory negligence so charged against him, whereupon the court, on the appellee's motion, entered judgment in its favor, and declaring that appellant take nothing; this appeal has been regularly prosecuted from the action so taken below.

In this court, the sole contention presented by the appellant is that the trial court erred in not granting him a new trial upon the alleged newly discovered testimony of C. C. Gibson, which he duly declared upon and presented upon that hearing; he made no objections upon the original trial to any of the pleadings, or to the charge of the court to the jury, or to any of the jury's findings as being either conflicting or unsupported by the evidence or the pleadings, and confined his ground for a new trial entirely to his declaration upon the newly discovered testimony of Gibson; likewise here he confines his complaint against the trial court's judgment to the single act of having refused him a new trial because of the thus newly discovered testimony of Gibson.

Since under our authorities motions for a new trial on account of newly discovered evidence are addressed to the sound discretion of the trial court, the question of whether or not in this instance there was an abuse of such discretion is the only one presented by this appeal. Allen v. Texas & N. O. R. Co. (Tex.Civ.App.) 70 S.W.(2d) 758 (writ of error dismissed); Griffith v. Gohlman, Lester & Co. (Tex.Civ.App.) 253 S.W. 591; Weeks v. Lipp (Tex.Civ.App.) 48 S.W.(2d) 716; Sovereign Camp, W. O. W., v. Shires (Tex.Civ.App.) 44 S.W.(2d) 812; Humphris v. Benedetto (Tex.Civ. App.) 55 S.W.(2d) 862; J. Lee Vilbig & Co. v. Lucas (Tex.Civ.App.) 23 S.W.(2d) 516; Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Bledsoe v. Burleson (Tex.Civ.App.) 289 S.W. 143.

In urging such sole contention, appellant proceeds upon the theory that this court should presume that the court below entered its adverse judgment upon the jury's finding that appellant was driving at the time in excess of twenty miles per hour, which finding he concedes to have been supported by the pleadings and evidence, but in so doing disregarded further findings to the effect that appellant failed to keep a proper lookout both as he approached and proceeded across the intersection of the two streets after having heard the siren of the appellee's ambulance, which additional findings he asserts to have been unsupported by the pleadings and proof, or at least contradictory, hence must be deemed to have been so disregarded by the trial court.

Just how this presumption can be indulged that the trial court so acted does not readily occur, in the state the record presents; it would require this court to disregard the jury's verdict on all the issues of contributory negligence, except the single one relating to the speed at which the appellant was traveling at the time of the collision, notwithstanding that no such attack was made upon any of them in the trial court, and upon appellant's mere ipse dixit that, if not unsupported, they were contradictory to finding No. 14 that he could not have stopped after hearing the siren of the ambulance in time to have avoided the collision; the most material ones of these findings, which went to the heart of appellee's defense, were those returned under Nos. 12, 16, 17, 18, and 19 to 21, inclusive, and determined that appellant had so failed to keep a proper lookout both as he approached and crossed the intersection of the streets, after it had already been determined under issue No. 10 that he had also driven his motorcycle at the time into that intersection in excess of twenty miles per hour; while it does not seem to this court that any of the findings it is thus sought to have disregarded have been properly attacked here, even were that conceded, the record fails to support it, in that the evidence behind them all was ample; but the appellant, rather alternatively it would seem, also suggests, as indicated supra, that these findings that his negligent failure to keep such a lookout was a proximate cause of the collision conflict with the stated finding under No. 14 that he could not have stopped after hearing the...