Wichita Falls Traction Co. v. McAbee

• Decision Date: 08 July 1929
• Docket Number: (No. 12176.)
• Citation: 21 S.W.2d 97
• Parties: WICHITA FALLS TRACTION CO. v. McABEE et al.
• Court: Texas Court of Appeals

21 S.W.2d 97

WICHITA FALLS TRACTION CO. v. McABEE et al.

(No. 12176.)

Court of Civil Appeals of Texas. Fort Worth.

July 8, 1929.

Rehearing Denied September 28, 1929.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Mrs. J. H. McAbee and husband against the Wichita Falls Traction Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. H. Lipscomb, of Fort Worth, and Wm. N. Bonner and Virgil Childress, both of Wichita Falls, for appellant.

Bullington, Boone, Humphrey & King, of Wichita Falls, for appellees.

BUCK, J.

Plaintiff Mrs. J. H. McAbee, joined pro forma by her husband, J. H. McAbee, filed suit in the district court of Wichita county against the Wichita Falls Traction Company for damages, alleged to have occurred in May, 1928. She alleged that on the night of May 10, 1928, on account of the stormy weather, she left her home and drove in a Ford automobile, with her nephew, some 14 years old, to the home of her sister-in-law, Mrs. Mike Benson, at 1804 Ninth street; that she stayed there until about 9:30 or 10 o'clock that night; that at said time and place, as alleged in her original petition, she "backed her automobile out of a driveway at No. 1804 on said street with the intention of driving in an easterly direction along Ninth street; that she backed said car out into said Ninth street and upon and across the said street car track when without any fault or negligence on her part the motor of said automobile stopped, leaving said car standing diagonally across said track; that at about the time the said automobile stopped as aforesaid the plaintiff observed one of the defendant's street cars approaching from the rear at a very rapid rate of speed; at about the same time the motorman of said street car having already observed her automobile standing upon said track began ringing the bell of said street car as a warning to her to get her said automobile off the track; that the plaintiff immediately upon finding said motor had stopped undertook to start the same and used every means at her command in an effort to start said car, but owing to the fact that it was a cold wet night the motor of said automobile was sluggish and the plaintiff was unable to start the same immediately; that the defendant's employee in charge of said street car failed and neglected to check the speed of said car but continued at a rapid and reckless rate of speed, striking the plaintiff's automobile in such a manner and with such great force as to produce the injuries hereinafter fully set out."

Plaintiff alleged that she was injured in her head, neck, shoulders, back, and arms, and that she sustained an injury to her chest by being thrown against the steering wheel of the automobile, and that she was greatly frightened, and that her nervous system was shocked. In her original petition she prayed for damages in the sum of $3,000. In her amended petition, filed September 24, 1928, some four months later, she amplified the allegations of defendant's negligence, of her injuries, and alleged that by reason of said injuries she was permanently injured, and prayed for $15,000 damages.

The cause came on for trial, and the case was submitted to a jury on special issues. The trial court, after defining "negligence," "contributory negligence," and "proximate cause," submitted the case on the following special issues:

"1. Was the operation of the defendant's street car at the rate of speed it was going on the occasion of which plaintiff was struck by said street car, negligence as that term is defined to you herein? Answer: Yes.

"2. If you answer the preceding issue `no' you need not answer this issue, but if you answer it `yes' then was said operation of said street car at said rate of speed a proximate cause of the injuries, if any, to plaintiff, as that term has been defined to you? Answer: Yes.

"3. On the occasion at which defendant's street car collided with the automobile of plaintiff was the operator of defendant's street car keeping such a lookout as would have been kept by a person of ordinary prudence to avoid injuring persons and property situated and under the circumstances that the plaintiff was at this time? Answer: Yes.

"4. If you have answered the preceding issue `yes' you need not answer this issue, but if you have answered it `no,' then was such failure to keep such lookout, if any such failure you have found, a proximate cause of the injury to plaintiff, if any? Answer: _____.

"5. Did the operator of the street car in question just prior to the collision of the street car with the automobile have said street car under control? Answer: No.

"5-a. If you answer the preceding issue `yes', then you need not answer this issue, but if you answer it `no' then was such failure to have such street car under his control, if any such failure you have found, negligence on the part of the defendant? Answer: Yes.

"6. If you have answered the preceding issue `no' you need not answer this issue, but if you have answered it `yes' then was such negligence, if any you have found, a proximate cause of the injury to the plaintiff, if any? Answer: Yes.

"7. Did the defendant's motorman on the street car which collided with the plaintiff's automobile at the time in question discover the dangerous position of the occupants of the automobile and realize their peril and realize that they would not probably be able to extricate themselves therefrom so that in the exercise of ordinary care by the use of all means at his command consistent with the safety of the street car and its passengers and himself he could have avoided the collision? Answer: Yes.

"8. If you answer the preceding issue `no', then you need not answer this issue, but if you answer the same `yes' then did the motorman in question after he was apprized of the fact as shown by your affirmative `yes' answer to the preceding issue, if you did so find, exercise ordinary care to use all of the means at his command consistent with the safety of the street car and its passengers and himself in order to avoid the injury? Answer: No.

"9. If you answer the preceding issue `yes' you need not answer this issue, but if you answer same `no', then was such failure on the part of the motorman a proximate cause of the injury to plaintiff, if any? Answer: Yes.

"10. What sum of money if paid now in cash will fairly and reasonably compensate the plaintiff, Mrs. J. H. McAbee for the injuries received by her, if any, as a direct result of the collision of defendant's street car with her automobile if it did so collide on or about the 19th day of May, 1928? Answer: $2,500.

"In answering the foregoing special issue you may take into consideration the nature and extent of the injury sustained, if any, and the physical and mental pain and suffering of the plaintiff, caused thereby, if any, up to the present time—also her diminished capacity, if any, to perform her household duties up to the present time, and if you believe from the evidence that her injuries, if any, are of a permanent nature and that she will suffer from the same, in the future, then you may allow also such a sum as may reasonably compensate the plaintiff for such future pain and suffering and such future loss of capacity for the performance of her duties as you may believe, from the evidence, she will suffer in the future, if any. But as to each of these items herein mentioned for your consideration you will allow only such as you believe, if any, the collision of the defendant's street car with plaintiff's automobile was the proximate cause thereof.

"You cannot consider any injury that she has or may suffer from which was or is the result of any previous operations, accidents, ills or injuries.

"11. Did the plaintiff, Mrs. J. H. McAbee, in backing out of the driveway, and on to the street car track, exercise that degree of care which would have been exercised by an ordinarily prudent person under the same or similar circumstances? Answer: Yes.

"12. Did the plaintiff, Mrs. J. H. McAbee, in allowing or permitting the automobile being operated by her to come to a standstill or stop on the defendant's street car track exercise that degree of care which would have been exercised by an ordinarily prudent person under same or similar circumstances? Answer: Yes.

"13. Did the plaintiff Mrs. J. H. McAbee, in failing to get out, or attempting to get out from the automobile, which she was occupying, after she realized that the street car was approaching her fail to exercise that decree of care which would have been exercised by an ordinarily prudent person under the same or similar circumstances? Answer: No.

"14. Did the plaintiff Mrs. J. H. McAbee, in depending entirely upon her own efforts to start her car, and relying upon the motorman to stop the street car before it collided with the automobile occupied by her fail to exercise that degree of care which would have been exercised by an ordinarily prudent person under the same or similar circumstances? Answer: No.

"15. Did the plaintiff Mrs. J. H. McAbee in backing out of the driveway of the Benson home and attempting to back across the street car track fail to use that degree of care which would have been exercised by an ordinary prudent person under the same or similar circumstances? Answer: No.

"16. Did the plaintiff Mrs. J. H. McAbee in attempting to back across the street car track before the approaching street car had passed, after she knew it was approaching, exercise that degree of care which would have been exercised by an ordinarily prudent person under the same or similar circumstances? Answer: Yes.

"17. Did the plaintiff in attempting to back her car across the street car track, or in permitting said street car [her car] to come to a standstill at the time she did and in the manner she did, and under circumstances in which the same was done, fail to exercise that degree of care which would have been...