Taber v. Smith, 3381.

• Decision Date: 02 April 1930
• Docket Number: No. 3381.,3381.
• Parties: TABER et al. v. SMITH.
• Court: Texas Court of Appeals

26 S.W.2d 722

TABER et al. v. SMITH.

No. 3381.

Court of Civil Appeals of Texas. Amarillo.

April 2, 1930.

Appeal from Wichita County Court; Irvin J. Vogel, Judge.

Suit by W. P. Smith against F. M. Taber and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Cox & Fulton, of Wichita Falls, and John C. Murphree, of Iowa Park, for appellants.

B. Y. Cummings, of Wichita Falls, for appellee.

HALL, C. J.

The substance of the appellants' statement of the nature and result of the suit, approved by the appellee, we state, as follows:

W. P. Smith sued F. M. Taber and L. C. Stewart to recover injuries alleged to have resulted to Smith's automobile from a collision with a truck owned by the defendants.

It is alleged that the collision occurred on the 7th day of February, 1929; that the defendants were operating a Ford truck used as a delivery vehicle in their tailoring business in the town of Iowa Park; that said truck was being driven along and upon a street or public highway in the town of Iowa Park, more than thirty minutes after sundown, without any lights, and in violation of article 798, Pen. Code, of the state of Texas. This is the only negligence on the part of the defendants, which plaintiff alleges.

Plaintiff further pleads that he was driving his automobile along said highway in the same direction in which the defendants' truck was going, that his auto was a Buick coupe, which was in good condition, and that due to the alleged negligence of defendants in operating their delivery truck, without lights, he ran his car into the rear end of the defendants' Ford truck, damaging his car to the extent of $600.

The defendants answered by general demurrer, general denial, and by special answer, admitting that on said date as alleged in the petition, they owned the Ford delivery truck used in delivering and collecting clothes from their customers in the town of Iowa Park; they further admit, that, on said date said truck was being operated along a street in the town of Iowa Park, approaching the business part of said town and on the Wichita Falls-Iowa Park Highway, traveling in a southeasterly direction, and that the same was being operated without lights.

They plead, by way of justification and excuse for the alleged negligence, that their deliveryman was out delivering clothes before sundown; that he had completed his deliveries in the east end of town before time to turn on his lights; that when said truck left the defendants' place of business, it had been in constant use and was in good running order, and defendants did not know or anticipate that the lighting system was not in good working condition; that the driver of said truck, just prior to the time of the accident, had turned on the ignition switch and found that something had, temporarily, gotten out of order, and that his lights would not burn; that the defendants knew nothing of this condition; that said ignition system had been in good condition prior to that time and they did not know, and could not have known, prior to that time, that the lights were not in good working order.

It is further alleged that the weather conditions were very bad; that it was extremely cold and snowing and sleeting and the streets and roads were covered with snow, sleet, and ice, and that their driver, when he learned of the condition of the lights, stopped at a private residence and telephoned defendants that said car was not working well, that his lights would not burn, and requested that someone come for the car.

They further allege that they had no other car or means of conveyance to send for the truck, and made every effort to get the garages in said town to go for the truck, but, owing to extreme weather conditions and other circumstances, they were unable to procure assistance; that the driver called the second time and told defendants he was about 400 feet from Barbour's Garage and Filling Station on the main highway above mentioned; whereupon, defendants instructed their driver to drive very slowly, upon the extreme right-hand side of the road, and take the car to Barbour's Garage, that being the nearest place where the car could be repaired; that the driver then proceeded only a short distance when the truck was struck by plaintiff's car without any warning of any kind.

They assert that the driving of said car without lights was due to unavoidable condition and accident; that said car being temporarily without lights and the ignition system being out of repair, could not have been foreseen or prevented, and that they used every reasonable means and method to get the car to a place where it could be repaired, which was only about 400 feet from where the defect was discovered, and denied that the driving of said car without lights, under said circumstances, was negligence.

The defendants further alleged that the plaintiff was guilty of contributory negligence, in this: That, notwithstanding the mist, and the sleet and snow, which was on the highway and streets, and had settled on the windshield and lights of plaintiff's car, he was driving through and into said city and within the corporate limits thereof at a very dangerous rate of speed, and in violation of article 789 of the Penal Code of the state of Texas, and also in violation of article 801, subds. (C) and (F) thereof, and that the violation of said articles and laws of the state, by plaintiff, was negligence; that such negligence on his part contributed directly and proximately to plaintiff's damage and injuries.

They further allege contributory negligence on the part of the plaintiff in that he was careless and reckless and was driving his car at a dangerous rate of speed, to wit, from 30 to 35 miles per hour; that he failed to keep a proper lookout ahead; that defendants' truck had a large delivery body such as is commonly used for tailoring purposes, which stood about five or six feet high and on the usual width of bodies of Ford trucks, and could have been easily seen for a sufficient distance for plaintiff to have stopped or turned his car and avoided the collision, if he had been driving at a reasonable and lawful rate of speed, or if he had been keeping a proper lookout.

The case was submitted to a jury upon special issues. Complaint is made of the charge with reference to the following instructions and issues:

"No. 3. Contributory negligence, as that term is used in this charge, means negligence on the part of the plaintiff concurring with some negligent act committed by defendants, such negligent act of plaintiff proximately causing an accident or injury.

"No. 4. The term `proximate cause,' as used herein, means that cause which produces an injury, and but for which, the injury would not have occurred, and which injury, or some similar injury, could have been foreseen and avoided by the use of ordinary care.

"In connection with the definition of proximate cause already given you, you are instructed that there may be more than one proximate cause of an injury.

"The driving of a motor vehicle in the State of Texas, upon a public highway, without a red light on the rear of said vehicle, 30 minutes after sunset, is negligence in law."

The court then submitted the following special issues, material to the contentions urged here, which were answered as indicated:

"No. 1. Was defendants' negligence in operating the Ford truck 30 minutes after sundown, without a red light on the rear thereof, the proximate cause, as that term is defined to you herein, of the injury and damage to plaintiff's automobile? Answer: `Yes.'"

"No. 4. Was the plaintiff's negligence in operating his automobile at a greater rate of speed than 20 miles per hour within the corporate limits of the City of Iowa Park contributory negligence, as that term has been hereinbefore...