Tarbutton v. Ambriz
| Decision Date | 06 February 1924 |
| Docket Number | (No. 7089.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 259 S.W. 259 |
| Parties | TARBUTTON v. AMBRIZ. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; R. B. Minor, Judge.
Action by Glafira Ambriz against R. C. Tarbutton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Birkhead & Lang, Werner N. Beckmann, and Mason Williams, all of San Antonio, for appellant.
Edward H. Lange and Arthur G. Uhl, both of San Antonio, for appellee.
This is an appeal from a judgment for $3,000 rendered in favor of appellee, in an action in which she sued appellant for damages caused from personal injuries arising from being struck by an automobile on October 3, 1921. The cause was submitted to a jury on special issues.
All the evidence showed that appellee was on her way to her place of business in the early morning of October 3, 1921, when she was struck by a moving automobile driven by appellant on South Frio street, between Monterey and Buena Vista streets, in the city of San Antonio. All the witnesses agree that appellant was driving north on South Frio street, and that appellee was going north on the east sidewalk of South Frio street. She swore that she was on the sidewalk, which was not paved, when she was struck. She swore:
"I felt a strong gust of wind; I felt as though they had taken hold of my clothes and raised me up; then I wondered what was happening, and I turned around and looked south; when I looked back, the glass of the automobile struck me right on the side, twisted me around in front of the motor of the car, I was knocked down, and the car dragged me on a little piece, and the left wheel of the automobile was on top of my right leg."
She said she was away from the curbing and between it and the fence when she was struck. It was a cloudy day, and was drizzling. When cross-examined as to how she was struck appellee testified:
"Said it raised me up and threw me backwards into the street; when it struck I fell back on my back, on top of the motor, and then just as I saw this I was throwed on top of the motor; that was the first lick I got on top of my head."
She lost her purse, which was found by appellant on the left fender of the car. Appellee testified that she was struck by the car south of a telephone pole which stood in the edge of the sidewalk, inside the curb. If her testimony be true, the front of the car must have been on the sidewalk when it struck her, and her chief witness, Gregoris Islas, swore that when he reached the scene of the accident the car was standing with the right front wheel on the sidewalk, the other wheel and the two rear wheels being in the street, the rear right wheel being near the curbing. That witness sought to convey the impression that the car was south of the telephone pole, but on cross-examination admitted that he did not know whether there were any telephone poles along that block or not. That witness swore that the left rear wheel, that is, the one farthest from the curb, was on the right leg of appellee, and she was stretched on the pavement under the car with her head near the curb just in front of the right rear wheel. The street was paved, but the sidewalk was not, and it was muddy.
Appellant swore that it was about 7 o'clock a. m. and he was returning in his Buick automobile from an ice factory and was moving north on South Frio street, at the rate of 10 or 12 miles an hour, when appellee stepped out into the street about 10 feet ahead of him, and that the left front fender struck her and threw her under the car. As soon as he saw her, to avoid striking her he threw his car to the right and it went over the curb into the sidewalk. He stopped the car in about 12 feet. He swore that when he got out of his car appellee was lying under it with her head back of the rear right wheel and her right leg under the rear left wheel. He swore that the pole was about two feet south of the rear of the car. This becomes important because he testified that appellee seemed to step from behind the pole into the street.
How appellee was placed in the position she held when the automobile stopped and was lifted from her right leg was not shown. There is some difficulty in accounting for her position from the standpoint of either version of the evidence, but the difficulties are intensified from the viewpoint of appellee's testimony. There is no reasonable way of reconcile her posture on the pavement after the accident with the testimony of appellee that she was caught up by the glass of the car, which must have been the windshield or lamp, and thrown over the motor from the right-hand side of the car. It appears to be an impossibility.
It is alleged in the petition that appellant was operating his automobile "in such a negligent and reckless manner that...
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...and counsel who dare to ask such questions and secure a verdict must suffer the consequences of their infraction." In Tarbutton v. Ambriz (Tex. Civ. App.) 259 S. W. 259, and Lange v. Lawrence (Tex. Civ. App.) 259 S. W. 261, assignments of error were sustained to the action of plaintiff's co......
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...App.) 165 S. W. 483; Coon v. Manley (Tex. Civ. App.) 196 S. W. 606; Debes v. Greenstone (Tex. Civ. App.) 247 S. W. 289; Tarbutton v. Ambriz (Tex. Civ. App.) 259 S. W. 259; Lange v. Lawrence (Tex. Civ. App.) 259 S. W. 261; Acola v. Petroleum Co. (Tex. Civ. App.) 261 S. W. In the early case o......
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Johnson v. Reed
...reversible error. Green v. Ligon, 190 S.W.2d 742 (Tex.Civ.App., Fort Worth 1945, writ ref'd n.r.e.); Tarbutton v. Ambriz, 259 S.W. 259 (Tex.Civ .App., San Antonio 1924, writ ref'd n.r.e.); Lange v. Lawrence, 259 S.W. 261 (Tex.Civ.App., San Antonio 1924, writ dism'd); Houston Transit Company......
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