Taber v. Smith, 3381.

CourtCourt of Appeals of Texas
Writing for the CourtHall
Citation26 S.W.2d 722
PartiesTABER et al. v. SMITH.
Docket NumberNo. 3381.,3381.
Decision Date02 April 1930
26 S.W.2d 722
TABER et al.
v.
SMITH.
No. 3381.
Court of Civil Appeals of Texas. Amarillo.
April 2, 1930.

Page 723

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

Page 724

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...

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20 practice notes
  • Christy v. Blades, B--1418
    • United States
    • Supreme Court of Texas
    • November 19, 1969
    ...369 (wr. ref. n.r.e.); Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892 (wr. ref. n.r.e.); Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722 (no The jury in Hammer found that the traveling of defendant's bus on the wrong side of the road was negligence. It appeared that the bus was ou......
  • Phoenix Refining Co. v. Powell, 12423
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • September 10, 1952
    ...prudent man standard of negligence should be submitted. Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722; Safeway Stores v. Webb, Tex.Civ.App., 164 S.W.2d 868; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d From a reading of the cases cited, the followi......
  • Rash v. Ross, 14069
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 5, 1963
    ...Tex.Civ.App., 170 S.W.2d 792; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 438; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, 725; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Hodges, Special Issue Submission in Texas, The evidence in support of excuse justified the submi......
  • Missouri Pac. R. Co. v. Sparks, 45
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 20, 1967
    ...364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183; Fort Worth & D.C. Ry. Co. v. Bell, 14 S.W.2d 856 (Tex.Civ.App.), err. ref; Taber v. Smith, 26 S.W.2d 722, 725 (Tex.Civ.App.), no writ; 40 Tex.Jur.2d, Sec. 37, p. 502. We sustain appellant's related points of error, and we hold that the sudden jerk ......
  • Request a trial to view additional results
20 cases
  • Christy v. Blades, B--1418
    • United States
    • Supreme Court of Texas
    • November 19, 1969
    ...369 (wr. ref. n.r.e.); Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892 (wr. ref. n.r.e.); Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722 (no The jury in Hammer found that the traveling of defendant's bus on the wrong side of the road was negligence. It appeared that the bus was ou......
  • Phoenix Refining Co. v. Powell, 12423
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • September 10, 1952
    ...prudent man standard of negligence should be submitted. Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722; Safeway Stores v. Webb, Tex.Civ.App., 164 S.W.2d 868; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d From a reading of the cases cited, the followi......
  • Rash v. Ross, 14069
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 5, 1963
    ...Tex.Civ.App., 170 S.W.2d 792; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 438; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, 725; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Hodges, Special Issue Submission in Texas, The evidence in support of excuse justified the submi......
  • Missouri Pac. R. Co. v. Sparks, 45
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 20, 1967
    ...364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183; Fort Worth & D.C. Ry. Co. v. Bell, 14 S.W.2d 856 (Tex.Civ.App.), err. ref; Taber v. Smith, 26 S.W.2d 722, 725 (Tex.Civ.App.), no writ; 40 Tex.Jur.2d, Sec. 37, p. 502. We sustain appellant's related points of error, and we hold that the sudden jerk ......
  • Request a trial to view additional results

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