Temple Lumber Co. v. Living

• Decision Date: 14 December 1926
• Docket Number: (No. 8886.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 289 S.W. 746
• Parties: TEMPLE LUMBER CO. v. LIVING et ux.
• Court: Texas Court of Appeals

289 S.W. 746

TEMPLE LUMBER CO. v. LIVING et ux.

(No. 8886.)^*

Court of Civil Appeals of Texas. Galveston.

December 14, 1926.

Rehearing Denied January 6, 1927.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Andrew Living and wife against the Temple Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Vinson, Elkins, Sweeton & Weems, C. M. Hightower, and E. D. Adams, all of Houston, for appellant.

Fred L. Perkins, W. M. Johnson, and Earle Adams, Jr., all of Houston, for appellees.

PLEASANTS, C. J.

This suit was brought by appellees against the appellant to recover damages for injury sustained by them in the loss of their minor son, Alcie, who was killed by being struck by an automobile truck owned by appellant and driven by one of its employees.

Among other grounds of negligence upon which the liability of the lumber company is predicated, the petition alleges the following: (1) The negligence of the driver of the truck in failing to sound any warning or give the deceased any notice of the approach of the truck; (2) the failure of the driver to keep a proper lookout for deceased; and (3) driving the truck on the left-hand side of the street.

The appellant answered by general demurrer, general denial, plea of contributory negligence, and plea of unavoidable accident.

The trial, in the court below with a jury, resulted in a verdict and judgment in favor of appellees for the sum of $2,143.75.

The case was submitted to the jury upon special issues, and, in response to the questions propounded by the court, the jury found that the driver of the truck was negligent in each of the particulars above stated, and that each of these acts of negligence was a proximate cause of the death of plaintiffs' child, and that the death of the child was not the result of an unavoidable accident.

The evidence shows that Alcie Living, the minor child of appellees, who was less than 5 years old at the time of his death, was struck and killed by a truck belonging to appellant and driven by its employee, Hilliard Bell. The killing of the child occurred in the following manner: Alcie, his brother, Nathaniel, and two other boys named Thompson were walking west along a street in a residence section of the city of Houston, returning to their home, when the truck with a trailer attached, and going at considerable speed, approached them from the rear. No warning of the approach of the truck was given by the driver, and it was not discovered by the boys until it was within 20 feet of them. One of the Thompson boys first saw the truck and gave warning to the others, who all ran from the shelled roadway in the center of the street along which they were walking to the side of the street. Alcie ran to the south side and the other boys to the north side of the street. They all reached a place of safety except Alcie, the youngest of them. He got out of the shelled roadway and stopped on the grass on the side of the roadway, where he turned to look. The truck passed him, but the trailer bounced out of the rut in the roadway, struck him down, passed over him and caused his death. The driver did not see the trailer strike the boy, but heard the cries of the other boys, and stopped the truck in a short distance from the place at which the child was killed. He testified that he stopped the truck within a distance of 25 feet. When the truck stopped it was not facing directly down the street, but diagonally across the roadway in the center of the street; the head of the truck being near the north side of the roadway and the trailer on the grass on the south side. The shelled roadway in the center of the street was 10 or 12 feet wide, and there was grass in the street on either side of this roadway.

Under appropriate assignments and propositions, appellant assails this judgment, on the ground that the negligence of the driver in failing to give warning of the approach of the truck was shown by the undisputed evidence not to have been the proximate cause of the death of the child, and, there being no evidence to sustain the findings of the jury that the driver was negligent in not keeping a proper lookout for the child and in driving the truck on the wrong side of the street, the verdict of the jury and the judgment based thereon must be set aside. The judgment is further assailed because of the failure of the trial court to submit to the jury the questions of contributory negligence of the deceased and of appellees. That portion of the judgment awarding appellees recovery of the expenses incurred by them in the burial of their child is also attacked, on the ground that appellees failed to plead that the amounts so claimed by them were reasonable.

Appellant complains of the finding of the jury upon the grounds above stated under separate assignments of error and separate propositions, as required by the rules, but, in disposing of the questions raised, we deem it unnecessary to so articulate them.

We cannot agree with appellant's contention that the negligence of the driver in failing to give warning of the approach of the truck was not a proximate cause of the death of plaintiffs' child. As before shown, the truck was discovered in time for the deceased to get to the side of the road and avoid being struck by the truck, but he did not get far enough to escape the trailer, which, because of its lightness and the roughness of the roadway, and the speed of the truck, which was not slackened upon the discovery of the presence of the children, was caused to lurch or bounce to the side of the roadway. It seems to us, under the circumstances shown by the evidence, that the striking of the child by the trailer might have been reasonably anticipated as a probable result of the failure to warn him of its approach.

The brother of the deceased testified:

"With reference to the condition of the road there, whether it is smooth or rough or full of chug holes, it is rough. I know what part of the truck hit Alcie. It was the trailer. I know how that trailer was going. It was going wobbling from one side to the other side of the road, and Alcie ran out of the road too. I erence to speed, the truck was going very fast. When I first saw the truck, I did not hear any warnings of any kind, but I heard somebody holler. I don't know who it was that hollered. When I heard some one holler, I ran out of the road, and Alcie ran out of the road too. I did not hear a horn on the truck. I know how close Alcie was standing to the side of the road. He was about one step from the road. I was on the right side of the road, and Alcie was on the left-hand side of the road. I know how wide that road is from edge of the grass on one side to the grass on the other side. It is about five steps, my steps. I said it was five steps. I know about what is the width of a car or an automobile. I don't know how close the truck drove to the side of the...