Vontsteen v. Rollish

• Court: Texas Court of Appeals
• Writing for the Court: Monteith
• Citation: Vontsteen v. Rollish, 133 S.W.2d 589 (Tex. App. 1939)
• Decision Date: 09 November 1939
• Docket Number: No. 10888.,10888.
• Parties: VONTSTEEN et al. v. ROLLISH et ux.

133 S.W.2d 589

VONTSTEEN et al. v. ROLLISH et ux.

No. 10888.

Court of Civil Appeals of Texas. Galveston.

November 9, 1939.

Rehearing Denied November 29, 1939.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Action by Eugene Rollish and wife against John E. Vontsteen and another for damages sustained as the result of death of the plaintiffs' son allegedly caused by negligent operation of automobile driven by the named defendant. From an adverse judgment, the defendants appeal.

Affirmed.

Lockhart, Hughes & Lockhart and H. C. Hughes, all of Galveston, for appellants.

Armstrong, Cranford, Barker & Bedford, Owen D. Barker, Frank B. Nussbaum, and James A. Piperi, all of Galveston, for appellees.

MONTEITH, Chief Justice.

This is an appeal in an action brought by appellee Eugene Rollish, individually, and for the use and benefit of his wife, Blanche Rollish, against appellants, John E. Vontsteen and Ohlhausen Dredging Company, to recover damages alleged to have been sustained as a result of the negligent operation of an automobile driven by the said John E. Vontsteen which resulted in the death of their son, Robert Erwin Rollish, about two years of age.

The suit arose out of a collision which occurred in the City of Galveston on November 28, 1937, between an automobile being driven by appellee Eugene Rollish, in which Blanche Rollish and Robert Erwin Rollish were also riding, and an automobile owned by the Ohlhausen Dredging Company, being driven by appellant John E. Vontsteen, who was at that time employed by appellant Ohlhausen Dredging Company. Appellee was proceeding in a northerly direction on 61st Street in the City of Galveston when he arrived at or near the intersection of 61st Street with State highway No. 6, with the intention of entering said highway and of proceeding in a westerly direction thereon. The collision occurred off of the concrete portion of the highway a short distance west of its intersection with 61st Street. Robert Erwin Rollish died as a result of the injuries received in such collision.

Appellee alleged that he was approaching said highway at a slow rate of speed when he observed the automobile being driven by appellant John E. Vontsteen leave the concrete portion of said highway, at a point considerably west of said intersection, in a manner indicating that said automobile would collide with his automobile; that in order to avoid the collision, he swerved his car to the left to reach the ditch before being struck by said automobile, but that by reason of the negligence of said appellant the automobile being driven by him collided with appellee's automobile, and because of the force of said impact the infant, Robert Erwin Rollish, received injuries which proximately resulted in his death a short time thereafter. Appellee alleged numerous specific acts of negligence on the part of appellant John E. Vontsteen, claimed to amount to negligence proximately causing the collision.

Appellants answered by general demurrer and general denial. They alleged that said collision was brought about solely by various acts and omissions on the part of Eugene Rollish, which they claimed amounted to contributory negligence.

The case was tried before a jury, who, in answer to special issues submitted, found, among other facts, that appellant John E. Vontsteen, at the time of said collision, was driving his automobile at an excessive rate of speed under the circumstances; that in so doing he was guilty of negligence, and that such negligence was a proximate cause of the collision. The jury found further against appellants on all issues involving the doctrine of discovered peril, including an issue to the effect that the failure of appellant John E. Vontsteen to use ordinary care to avoid said collision was the cause of the collision, and of the death of said Robert Erwin Rollish. The jury found that appellee was not guilty of negligence in any of the particulars alleged by appellants. Based on this verdict, the court rendered judgment in favor of appellee and against appellants in the sum of $4,101.

The controlling questions involved in this appeal are, first, whether there is support in the evidence for the submission of the issues involving the doctrine of discovered peril, and, second, whether there is sufficient evidence in the record to support the jury's findings thereon.

The rule, in passing on the question as to whether there was evidence to take to the jury the issues of discovered peril, is that if, disregarding all adverse evidence and giving credit to all evidence favorable to the party in whose favor the verdict has been rendered, and indulging every legitimate conclusion favorable thereto which might have been drawn from the facts proved, a jury might have found in favor of said party in answer to issues involving discovered peril, such issues should have been submitted to the jury. Thurmond et al. v. Pepper et al., Tex.Civ. App., 119 S.W.2d 900; Stinnett v. Gulf C....