Vesper v. Lavender

• Decision Date: 12 June 1912
• Citation: 149 S.W. 377
• Parties: VESPER et ux. v. LAVENDER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 377

149 S.W. 377

VESPER et ux. v. LAVENDER.^†

Court of Civil Appeals of Texas. San Antonio.

June 12, 1912.

On Motion for Rehearing, June 28, 1912.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by Mrs. E. Lavender against Fred W. A. Vesper and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Harry P. Lawther, of Dallas, for appellants. Wood & Wood, and Carden, Starling, Carden & Hemphill, all of Dallas, for appellee.

JAMES, C. J.

The action was brought by Mrs. Lavender for damages alleged to have been sustained (1) by the failure of Mrs. Vesper, as she was driving an automobile, to give any alarm or signal of its approach to the street crossing where the accident occurred; (2) by by her failure to slacken the speed of the automobile to not more than three miles an hour at a street crossing; (3) by negligently operating the automobile at a greater speed than was reasonable, having regard to the traffic and use of the public street by others; (4) by negligently operating it in a careless and unskillful way; (5) by negligently failing to keep a proper outlook; (6) that Mrs. Vesper was incompetent, inexperienced, and unskillful, and thereby unable to carefully manage and operate the automobile; and (7) by her failure to slow down and stop the machine and avoid injuring plaintiff after she discovered the latter's danger. Appellant answered by general demurrer and denial, and specially that she was proceeding in her automobile north on Ervay street, at a moderate speed, when suddenly and without any warning or notice plaintiff carelessly stepped from the sidewalk to the street directly in front of the machine in the middle of a block, and not at a street crossing; that plaintiff, as it appeared to Mrs. Vesper, had cleared the automobile, when she suddenly, carelessly, and negligently stopped and hesitated, and then quickly and negligently started back to the sidewalk, when the collision occurred.

A verdict was returned for plaintiff for $3,500.

Conclusions of Fact.

As supporting the verdict returned in this case, we conclude that the testimony warranted the finding of the following facts: (1) That defendant was guilty of negligence in the manner of operating the car at the time and place and under the circumstances, which negligence caused plaintiff's injury; (2) that defendant saw plaintiff in a situation of danger, and negligently failed to do what was necessary and proper to avoid injuring her; and (3) that plaintiff was not guilty of contributory negligence under the circumstances.

Under the assignments 1 to 4, it is contended that the testimony did not warrant submitting the issue of discovered peril. Our conclusions of fact dispose of this.

The point could be disposed of by the fact that defendant requested a charge submitting the issue, which amounted to a representation to the court that such issue existed in the testimony, and an invitation to submit the issue. The record does not we think make it apparent that the request was made after the court had decided to submit such issue. Railway v. Matthews, 34 Tex. Civ. App. 302, 79 S. W. 71; Poindexter v. Kirby, 101 Tex. 322, 107 S. W. 42; Henry v. McCown, and cases there cited, 140 S. W. 1170.

Our conclusions of fact, as above stated, and what is stated under the foregoing assignments, dispose of the fifth assignment, which complains of the refusal of a peremptory instruction for the defendant. However, the propositions under this assignment appear to contend that the peremptory instruction should have been given because the evidence established that the collision happened by plaintiff unexpectedly getting in the way of the car, and in a position of danger under circumstances that did not allow defendant an opportunity to avoid injuring her. This cannot be said to be the effect of the evidence as a matter of law. Hence the reason which is urged in favor of the peremptory instruction fails.

The sixth assignment complains of the refusal of a charge which would have told the jury that it was negligence on the part of plaintiff not to have looked and listened before stepping from the sidewalk into the street for the approach of automobiles or other vehicles, and, if she so acted and the collision was due to, or contributed to by, such failure, to find for defendant. The giving of such charge would have nullified the issue of discovered peril. The refused charge reads: "It was the duty of the plaintiff, Mrs. Lavender, before stepping from the sidewalk into the street, to look and listen for the approach in any direction of any vehicle that might be at that point in the use of the highway, and if you find from the evidence in this case that the said Mrs. Lavender failed to so look and listen, and that the collision with the automobile was due to such failure on her part, or that the collision was contributed to by such failure, if you find there was such failure, you will find for the defendants."

Inasmuch as all the testimony shows that plaintiff was not struck as she stepped from the sidewalk, the applicability of the proposition is not apparent. It may be conceded that if a pedestrian steps suddenly from a sidewalk into the street directly in front of a vehicle—that is, into a plain and obvious danger—and is hurt, he ought not to recover.

But a pedestrian has a right to go upon a street for the purpose of crossing. While so doing he has an equal right with those who use vehicles to the use of the street. Each is required to use the street with a reasonable regard for the safety and convenience of the other. While so using the street, a pedestrian's conduct with respect to due care in looking and listening may under certain circumstances be negligence of so pronounced a character that it could be declared negligence as a matter of law. The testimony here was not such as to warrant such a declaration.

The rule on this subject has frequently been declared in this state in connection with the duty of a person to look and listen before crossing a railway track at public crossings, or street railway tracks on streets, and it has uniformly been held that the failure to do so is not negligence per se, but may, according to the existing circumstances, be found to be such by the jury. Traction Co. v. Hunt, 54 Tex. Civ. App. 415, 118 S. W. 827; Traction Co. v. Upson, 31 Tex. Civ. App. 50, 71 S. W. 568; Railway v. Tinon, 117 S. W. 936; Railway v. Butts, 132 S. W. 89. We may, in this connection, quote from Hennessy v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396: "There is no imperative rule of law * * * generally requiring a pedestrian when lawfully using the public ways to be continually looking or listening to ascertain if auto cars are approaching, under the penalty that upon failure to do so, if he is injured, his negligence must be conclusively presumed. * * * This requirement has not been applied to travelers in their daily and common use of highways. * * * The usual rule of ordinary care does not impose upon them the burden of being constantly on the lookout to see if their path was free from dangerous defects, or in a state of apprehension of personal injury from other travelers."

The seventh assignment complains of alleged improper argument on the part of appellee's counsel. The bill on this subject sets forth that it was shown that three persons, Judge Greer, Mrs. Whiteman, and Mrs. Burks, were on the corner near the scene of this collision in company with Mr. Bowles and Mr. Lake, who were used as witnesses by the defendant; that Mr. Carden, plaintiff's attorney, in the closing argument, said to the jury: "Why have the defendants in this case failed to produce before you these witnesses?" referring to said three persons. Whereupon defendants' counsel, Mr. Lawther, asked Mr. Carden if he might answer the question, and started to say that he had talked to them prior to the trial. Whereupon Mr. Carden said to Mr. Lawther that he had no objection to his stating anything based on the testimony, and, in reply, Mr. Lawther said he would tell it anyway, that he had talked to said parties, and they told him they knew nothing whatever about the accident. Then Carden resumed his argument, saying: "How about Judge Mathis, who the record shows was put upon the stand by the defendant on the former trial?" Thereupon Lawther replied that as to Judge Mathis defendants did not put him on the stand because they wanted the plaintiff to put him on. Then Carden, resuming, said: "I know these questions hurt. I don't blame Mr. Lawther for trying to evade and explain them. What did Judge Mathis, Judge Greer, Mrs. Burks, and Mrs. Whiteman know about this accident? Don't you believe that, if what they knew about this case benefited the defendants, defendants would have put them on the stand?" Then Mr. Lawther arose, and stated to the court: "I will take a bill of exceptions to these remarks." And the court said: "Very well, you may have your bill." The court in giving the bill qualified same by adding that Mr. Lawther, who had addressed the jury just before Mr. Carden, had stated among other things that after the collision defendants advertised in the press for witnesses, and laid particular stress on said action on their part as being open and candid, and, further, that frankness and such action on their part and their publishing to the world asking that witnesses come forward and tell what they knew about the case showed that Mrs. Vesper was a fair and honorable witness and worthy of belief, and that her...