Whistler v. Freeman, 9905.

• Decision Date: 20 July 1933
• Docket Number: No. 9905.,9905.
• Parties: WHISTLER v. FREEMAN.
• Court: Texas Court of Appeals

Page 674

62 S.W.2d 674

WHISTLER v. FREEMAN.

No. 9905.

Court of Civil Appeals of Texas. Galveston.

July 20, 1933.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by J. K. Freeman against Vera Whistler. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Royston & Rayzor and Mart H. Royston, all of Galveston (Clarence Eastham, of Galveston, of counsel), for appellant.

LANE, Justice.

From the record filed in this case in this court it is made to appear that J. H. Freeman, not J. K. Freeman, brought this suit against Miss Vera Whistler to recover for personal injuries suffered by him in an automobile collision at an intersection of certain streets in the city of Houston, Tex. J. K. or J. H. Freeman was a guest passenger in an automobile being driven by Mrs. Jewell Freeman. Miss Vera Whistler was the driver of the other automobile involved in the collision resulting in the injuries suffered by the plaintiff.

Defendant answered by a general demurrer, general denial, and by specially alleging contributory negligence on the part of the plaintiff, and that the negligence of Mrs. Freeman, the driver of the car in which the plaintiff was riding, was the direct and proximate cause of the plaintiff's injuries.

The cause was tried before a jury upon special issues affirmatively submitting inquiries as to whether or not the defendant was guilty of the acts of negligence alleged in the plaintiff's petition, charged to have resulted in the plaintiff's injuries, and, if so, were such acts of negligence, or either of them, a proximate cause of the collision and of plaintiff's injuries?

The defendant requested the court to affirmatively submit the following inquiries to the jury:

First. Whether or not they find from a preponderance of the evidence that the driver of the car in which the plaintiff was riding did not maintain a proper lookout upon approaching or entering the street intersection at the time, place, and occasion in question, and, if so, did such failure, if any, constitute "negligence" as that term was defined, and the sole proximate cause of the collision and the plaintiff's injuries?

Second. Whether or not they find from a preponderance of the evidence that the driver of the car in which plaintiff was riding lost control of her car immediately preceding the collision and entering the street intersection, and, if so, was the failure to have control of said car at such time negligence, and the sole proximate cause of said collision and plaintiff's injuries?

Third. Whether or not they find from a preponderance of the evidence that the driver of said car operated the same at an excessive rate of speed at the time and place of the collision, and, if so, was the driving at such excessive rate of speed at such time and place negligence, and the sole proximate cause of the collision and the plaintiff's injuries?

Fourth. Whether or not they find from a preponderance of the evidence that the driver of the car in which plaintiff was riding failed to sound a proper warning upon approaching the intersection of the streets at the time and place of the collision, and, if so, was such failure negligence, and the sole proximate cause of such collision and the plaintiff's injuries?

Fifth. Whether or not they find from a preponderance of the evidence that plaintiff failed to maintain such lookout for his own safety as was reasonable and proper under the circumstances, and, if so, was such failure negligence, and a proximate cause of the collision and the plaintiff's injuries?

All such requested issues were refused by the court.

All the special issues submitted by the court were answered in the affirmative, and favorably to the plaintiff. The jury also found, in answer to the inquiry of the court, that $1,500 would fairly compensate the plaintiff for the injuries sustained by him.

Upon the verdict and...