Suttle v. Texas Electric Ry.

• Citation: 272 S.W. 256
• Decision Date: 16 April 1925
• Docket Number: (No. 200.)
• Parties: SUTTLE v. TEXAS ELECTRIC RY.
• Court: Court of Appeals of Texas

272 S.W. 256

SUTTLE v. TEXAS ELECTRIC RY.

(No. 200.)

Court of Civil Appeals of Texas. Waco.

April 16, 1925.

Rehearing Denied May 14, 1925.

Appeal from District Court, McLennan County; Richard I. Monroe, Judge.

Action by R. B. Suttle against the Texas Electric Railway. Judgment for defendant, and plaintiff appeals. Affirmed.

Bryan & Maxwell and J. A. Kibler, all of Waco, for appellant.

Witt, Terrell & Witt, of Waco, for appellee.

BARCUS, J.

Appellant instituted this suit against appellee for damages because of the death of his son, J. C. Suttle, alleging that a street car operated by appellant's agents in Waco collided with an automobile driven by Mrs. A. L. Walker, in which his son, together with 14 or 15 other children, were riding as the guests of Mrs. Walker, resulting in the death of his boy. Appellant alleged that appellee was guilty of negligence in failing to sound the gong or keep a lookout, and alleged that the motorman in charge of the street car actually discovered the presence of the automobile in time to have, by use of ordinary care, prevented the collision, and that each of said acts of negligence was the proximate cause of the injury. Appellee answered by general demurrer, general denial, and specially pleaded that the injury was the result of the negligence of Mrs. Walker, who was driving the automobile. The court submitted issues to the jury on the question of negligence of the appellee and on the question of negligence of Mrs. Walker, and in addition, submitted the following issue:

"Was the death of J. C. Suttle, plaintiff's son, due to an unavoidable accident? Answer `Yes' or `No.' If you answer the above question `Yes,' then you need not answer any of the other special issues submitted to you, and you may return your verdict into court."

To which the jury answered, "Yes," and did not answer any of the other special issues submitted. There was no objection made by appellant to the court's submitting the above issue in the form same was submitted. Based on said finding, the trial court entered judgment for the appellee.

Appellant complains of the jury's answer to the issue, contending that the same is not supported by the evidence. We overrule this assignment. The evidence tends to show that the street car had practically, if not entirely, stopped at the street crossing to permit a passenger to alight therefrom, when the automobile driven by Mrs. Walker came suddenly around the corner, and, in seeking to avoid a hole in the street, collided with the street car. There is also evidence tending to show that the motorman on the street car could not have seen the danger of a collision in time to have prevented same. Without stating in detail the testimony, the question of the injury, in so far as appellee is concerned, being the result of an unavoidable accident, was clearly raised thereby, and is sufficient to support the finding of the jury.

Appellant complains of what he calls the improper and unauthorized interference of counsel for appellee during the closing argument by appellant's counsel. The bill of exceptions shows that, while appellant's counsel was making his closing argument, appellee's counsel arose from his seat, and, in the presence and hearing of the jury, stated to appellant's counsel that he desired to ask him a question, and plaintiff's counsel objected to any question being asked and objected to being interfered with, and appellee's counsel was not permitted to and did not state what question he desired to ask counsel. We overrule this assignment. The jury were...