Texas City Terminal Co. v. Showalter

• Decision Date: 20 December 1923
• Docket Number: (No. 8397.)
• Parties: TEXAS CITY TERMINAL CO. v. SHOWALTER.
• Court: Texas Court of Appeals

Page 621

257 S.W. 621

TEXAS CITY TERMINAL CO. v. SHOWALTER.

(No. 8397.)

Court of Civil Appeals of Texas. Galveston.

December 20, 1923.

Error from District Court, Galveston County; J. C. Canty, Judge.

Suit by Joseph L. Showalter against the Texas City Terminal Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

W. T. Armstrong and W. E. Cranford, both of Galveston, for plaintiff in error.

Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for defendant in error.

LANE, J.

This suit was instituted by Joseph L. Showalter, who will be hereinafter referred to as plaintiff or appellee, against the Texas City Terminal Company, who will be referred to as defendant or appellant, to recover damages for personal injuries, doctors' and medicine bills, and nurse hire, alleged to be of a total sum of $10,000.

On the 10th day of July, 1920, plaintiff was riding in an automobile driven by his brother, Hugh Showalter, along a street in the town of Texas City, and, as the automobile reached a point in said street where the railway track of defendant crosses said street, a motorcar, sometimes called a "motorbus," owned and operated by defendant over said railway track by means of a motor engine, collided with the automobile in which said parties were riding, which resulted in the injury complained of by plaintiff. Plaintiff alleged that said collision was caused by the negligence of the defendant in the following particulars:

"(a) That the passenger car operated by defendant at the time and place alleged was not equipped with such a warning bell as is required by the statutes and laws of the state of Texas, and was not provided with a steam whistle, or any whistle at all, and that all of which negligent acts and omissions were in violation of the laws of Texas, and constitutes and is negligence per se, which renders defendant liable for all the personal injuries and damages sustained by plaintiff as hereinbefore and hereinafter set out and pleaded.

"(b) That the employee of the defendant in charge of said motor passenger car negligently failed to keep a proper lookout as he approached the crossing where said collision occurred.

"(c) That the employee of the said defendant in charge of said motor passenger car negligently failed to sound or blow any signal of warning to plaintiff and other persons as said motor passenger car approached the said crossing.

"(d) That the employee of the defendant in charge of said motor passenger car was operating same in a fast and reckless manner.

"(e) That the employee of the defendant in charge of said motor passenger car saw the automobile in which plaintiff was riding as same approached said crossing in time to have stopped said motorcar and in time to have avoided said collision, and attempted to do so by the appliances furnished him by defendant, but that the brake would not work because same was worn out and defective, and that the failure of defendant to furnish good and sufficient brakes and appliances for stopping said car in said emergency as outlined, was negligence.

"(f) That the brakes and other appliances on said motor passenger car were old, worn out, and out of repair, and would not work, by reason of which defendant's servants operating said car could not stop said car of defendant, even after the peril of plaintiff became known and visible to defendant's said employees.

"And that all of the above acts and omissions of defendant constituted negligence, and that said negligence was the proximate cause of the personal bodily injuries by this plaintiff sustained."

He alleged that by reason of said collision he sustained severe, permanent, and painful injuries to his face, head, neck, arms, shoulders, back, spine, knees, and limbs; that before his injuries he was earning $200 per month, and that since then he has not been able to perform any work, and avers and believes that it will be many months before he will be able to perform any kind of work, and that he will never be able to perform work at his regular occupation, nor to earn his regular wage of $200 per month; that his earning capacity has been, by reason of said injuries, diminished and lessened; "that by reason of said injuries he had been compelled to employ a physician and nurse and purchase medicine, and that he had obligated himself to pay his physician and nurse the reasonable value of his said services;" that by reason of the mental and physical pain and suffering which he had suffered by reason of said injuries, his diminished capacity to earn money, "his loss of blood, his permament disfiguration, his permanent weakened knee and limb, his doctor's and nurse's bills, costs of medicine," he has suffered and sustained actual damages in the sum of $10,000, for which he prays judgment.

The defendant answered by general demurrer and 20 special exceptions to the plaintiff's petition, but as the transcript discloses no ruling upon them we shall treat them as having been waived, and will make no further mention of them. Answering further, defendant denied generally the allegations of plaintiff's petition, specially pleaded contributory negligence on the part of plaintiff and the driver of the automobile in which they were riding at the time of the collision, in that said automobile was, at such time, being driven at a reckless and high rate of speed within the city limits of the city of Texas City, which said speed was more than 18 miles per hour, and in violation of law; that said parties approached said railway track and entered thereupon without looking or listening for the approaching motorcar; that both occupants of said automobile were drunk at the time of the accident, and that by reason thereof they failed to see the approach of said motorcar, which was unobstructed and could have been seen and heard by said parties had they looked or listened for same.

The cause was tried before a jury, to whom the following questions were submitted, and to which said questions the jury answered as indicated:

"Special Issue No. 1. Were, or were not, the injuries to Joseph L. Showalter caused by the joint negligence of Hugh A. Showalter and the Texas City Terminal Company? Answer: They were.

"Special Issue No. 2. Ascertain and determine from the evidence whether or not the defendant's servant operating defendant's motorbus car, just prior to the collision, used such care and kept such a lookout and observation for the approach of vehicles which might be approaching said public crossing and might desire to cross over same, as an ordinarily prudent person would have used under the same or similar circumstances in approaching said crossing where the collision occurred? Answer: No.

"Special Issue No. 3. If you have answered the above special issue No. 2 in the negative, that is, `No,' but not otherwise, then answer: Was such failure, if any, negligence? Answer: Yes.

"Special Issue No. 4. If you answer the above special issue No. 3 in the affirmative, that is, `Yes,' then answer: Was such negligence, if any, the proximate cause of the injuries by plaintiff sustained, if any? Answer: Yes.

"Special Issue No. 5. Ascertain and determine from the evidence whether or not the appliances for stopping the motorbus car of the defendant were sufficient to stop the car after defendant's operator discovered the peril of the collision with the automobile in which plaintiff was riding? Answer: No.

"Special Issue No. 6. If you have answered the foregoing special issue No. 5 in the negative, that is, `No,' but not otherwise, then you will answer: Was such failure negligence? Answer: Yes.

"Special Issue No. 7. If you have answered special issue No. 6 in the affirmative, that is, `Yes,' but not otherwise, then you will answer: Was such negligence the proximate cause of the...