West Texas Coaches v. Madi

• Decision Date: 08 February 1929
• Docket Number: (No. 531.)
• Citation: 15 S.W.2d 170
• Parties: WEST TEXAS COACHES, Inc., v. MADI et al.
• Court: Texas Court of Appeals

15 S.W.2d 170

WEST TEXAS COACHES, Inc., v. MADI et al.

(No. 531.)

Court of Civil Appeals of Texas. Eastland.

February 8, 1929.

Rehearing Denied March 22, 1929.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Suit by Masota Madi and others against the West Texas Coaches, Inc. Judgment for plaintiffs, and defendant appeals. Affirmed.

Harry P. Lawther, of Dallas, R. K. Hanger, of Fort Worth, and Bouldin & Zivley, of Mineral Wells, for appellant.

W. O. Gross, of Mineral Wells, and W. E. Allen, of Fort Worth, for appellees.

LESLIE, J.

The appellees, plaintiffs below, filed this suit in the district court of Palo Pinto county for damages on account of the death of John Madi, husband of Masota Madi and father of the minor appellees, alleged to have been proximately caused by the negligence of the appellant. The appellant answered by general demurrer, general denial, and pleaded specially the contributory negligence of the deceased and the driver of the car, Sam Madi, and that the collision between the appellant's coach and the car in which the deceased was riding was an unavoidable accident. The case was tried before the court and jury and submitted upon special issues. Upon the findings of the jury to the issues submitted, the district court rendered judgment in favor of appellee Masota Madi for $4,000, and in favor of the appellee minors, Abraham, Meida, and Joseph, in the sum of $2,000 each, with interest and costs. The court overruled appellant's motion for a new trial, and this appeal followed. Other facts material to the disposition of the case will be set out further on in the opinion.

There are 28 assignments of error in the record and 27 propositions of law thereunder. By reason of alleged errors of omission and commission the court's charge is assailed in nearly all of its different phases. It will be set forth in full, that its parts may be considered in their relation to each other.

"Gentlemen of the jury:

"You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony; but you are not the judges of the law, and by this instruction you will be guided in making your answers to the special issues which are submitted to you in this cause:

"For your guidance in answering the special issues which are submitted you are further instructed as follows:

"`Negligence' is the doing of that which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do that which such a person would have done under like circumstances.

"You are instructed that the term `proximate cause,' as that term is used in this charge, means the moving and efficient cause, without which the injury in question would not have happened; an act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question, and one that ought to have been foreseen by a person of ordinary care and prudence in the light of the attending circumstances.

"It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question, and but for which the said result would not have occurred.

"`Ordinary care' is that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances.

"Special Issue No. 1. — Under all the facts and circumstances in this case, and under the conditions existing at the time of the collision in question, was the operator or driver of the West Texas Coaches, known as `Miss Clyde,' negligent in passing or attempting to pass, if he did either, a truck on the Bankhead Highway at the rate of speed at which said coach was being operated? Answer Yes or No, just as you find.

"Special Issue No. 2. — If special issue No. 1 is answered in the affirmative, then was the negligence of the driver of said bus at said time and place a proximate cause of the collision and death of John Madi? Answer Yes or No, just as you find.

"Special Issue No. 3. — At the time and place of the collision in question, was the operator or driver of the defendant's coach, which collided with the Chevrolet car, in which John Madi was riding, operating said coach at a greater rate of speed than 15 miles per hour? Answer Yes or No, just as you find.

"Special Issue No. 4. — If special issue No. 3 is answered in the affirmative, then was the rate of speed at which the defendant's coach was being operated at said time and place a proximate cause of the collision, if any, and the death of John Madi? Answer Yes or No, just as you find.

"Special Issue No. 5. — Under all the facts and circumstances in this case at the time and place of the collision in question, did the operator of the said West Texas coach operate and drive said coach, if he did do so, at such rate of speed as to endanger the life of persons who were then and there on the Bankhead Highway? Answer Yes or No, just as you find.

"Special Issue No. 6. — If special issue No. 5 is answered in the affirmative, then was the rate of speed at which the coach was being operated at the time and place of the collision a proximate cause of the death of John Madi? Answer Yes or No, just as you find.

"Special Issue No. 7. — What amount of damages, if any, do you find that the plaintiff Mrs. Masota Madi, as the wife and beneficiary of John Madi, deceased, has sustained by reason of the death of the said John Madi? Answer the sum you find, if anything.

"In arriving at and determining your answer to this question, or to special issue No. 7, you will take into consideration and allow her whatever sum of money as, if paid now, would represent the fair value of what the plaintiff Mrs. Matsota Madi had a reasonable right to expect under the circumstances to receive from the earnings of her said husband. In determining the amount, if any, you will allow her, you may consider the earnings apparently, if any, of her said husband, at the time of his death, his age, and the condition of his health. In this connection, however, you are instructed that, in arriving at and allowing damages, if any, to Mrs. Masota Madi, the plaintiff, you must not take into consideration nor allow her any sum as compensation for her bereavement, mental anguish, or pain suffered by her by reason of the death of her said husband, but you can allow her any such damages, if any, as resulted in a pecuniary loss to her occasioned by his death.

"Special Issue No. 8. — In what amount, if any, do you find that the minor plaintiffs, Abraham Madi, Meida Madi, and Joseph Madi, as the children of John Madi, deceased, if you find they are his children, have each sustained damages, if any, by reason of the death of the said John Madi? Answer in the sum you find, if anything, for each individual plaintiff named.

"In arriving at and determining your answers to the foregoing question, you will take into consideration and allow them and each of them whatever sum of money as if, paid now, would represent the fair and reasonable value of what the deceased, John Madi, would probably have contributed to their support, education, and maintenance during the minority of each of them. In determining the amount, if any, you may consider the earnings of the said John Madi at the time of his death, his age, and the condition of his health, as well as the value, if any, from a pecuniary standpoint only, of his care and advice. In this connection, however, you are instructed that, in arriving at and allowing damages, if any, to each of said plaintiffs, you must not take into consideration nor allow them, or either of them, any sum whatever as compensation for bereavement, mental anguish, or pain suffered by reason of the death of John Madi, but you can allow to them, and to each of them, only such damages, if any, as resulted in a pecuniary loss occasioned by the death of John Madi.

"An unavoidable accident is an event happening suddenly and unexpectedly without the foresight or knowledge of a person and without fault or negligence on the part of anyone which caused the injury or damage.

"Special Issue No. 9. — Was the collision of the bus and Chevrolet car, at the time and place in question, an unavoidable accident as that term has been defined to you in the preceding paragraph of this charge? Answer Yes or No, just as you find.

"The burden of proof is upon plaintiffs to establish by a preponderance of the evidence affirmative answers to special issues 1 to 6 inclusive, and the amount, if any, in answer to questions 7 and 8, and upon the defendant to establish affirmative answer to special issue No. 9.

                             "J. B. Keith, District Judge."
                

The first and third assignments are addressed to the alleged errors of the court in its definitions respectively of "negligence" and "ordinary care." The objection is that said definitions are erroneous, in that the court in defining such terms used the phrase "ordinarily prudent person," whereas a correct definition of said terms would contain the phrase "ordinary prudent person." We are cited to no authority condemning the definitions given by the trial court upon the grounds here complained of, nor have we been able to find such authority. We hold the expression used by the court in its charge to be correct, legally and grammatically, and think such conclusion supported by the authorities, some of which are: Manufacturing Co. v. Bradley, 52 Tex. 599; Cameron Compress Co. v. Whitington (Tex. Com. App.) 280 S. W. 527; Wichita Valley Ry. Co. v. Meyers (Tex. Civ. App.) 248 S. W. 444; St. L. & S. F. Ry. Co. v. Franklin, 58 Tex. Civ. App. 41, 123 S. W. 1150 (writ denied); G., H. & S. A. Ry. Co. v. Simon (Tex. Civ. App.) 54 S. W. 309; San Antonio Gas Co. v. Robertson (Tex. Civ. App.) 55 S. W. 347; 44 C. J. p. 628, note 22.

Assignments 1 and 3 are overruled.

By the second and eleventh assignments,...