Williams v. Long, 8464.

• Decision Date: 26 May 1937
• Docket Number: No. 8464.,8464.
• Citation: 106 S.W.2d 378
• Parties: WILLIAMS et al. v. LONG.
• Court: Texas Court of Appeals

Page 378

106 S.W.2d 378

WILLIAMS et al. v. LONG.

No. 8464.

Court of Civil Appeals of Texas. Austin.

May 26, 1937.

Rehearing Denied June 16, 1937.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Action by George E. Long against Thomas Williams and others, as partners doing business under the name of the Williams Lumber Company. Judgment for plaintiff, and defendants appeal.

Affirmed.

E. C. Gaines, of Austin, for appellants.

Wright Stubbs, Polk Shelton & Emmett Shelton, and Everett L. Looney, all of Austin, for appellee.

BLAIR, Justice.

Appellee, George E. Long, sued appellants, Thomas Williams, N. D. Williams, L. L. Williams, and W. E. Satterwhite as partners doing business under the name of Williams Lumber Company, to recover damages for personal injuries sustained in a collision of a Chevrolet coupé driven by appellee and a 6-wheel truck and trailer driven by an employee of appellants. The collision occurred at the intersection of East Second and Red River streets, in the city of Austin. There was no appreciable collision between the automobile and the truck, "the back part of the door being dented in a little bit, and the seam was ripped out on the turtle"; but the arm of appellee, which rested on the door of his automobile, with the elbow extending out, was struck by the rear end of the trailer so that it was seriously injured. The case was submitted to the jury upon 57 special issues, and upon their answers, judgment was rendered in favor of appellee for the sum of $3,280.80; hence this appeal.

The pleadings of appellee and appellants consisted of the usual charges of negligence and defensive pleas as in cases of automobile collisions. The jury found appellants' agent negligent in the several acts charged, and that each of such acts of negligence was a proximate cause of the injuries to appellee. Appellants concede that the jury's answers entitled appellee to the judgment rendered, except for the jury's answers to two series of questions, submitted by special issues Nos. 24, 25, 26, 27, 28, and 29, which issues and the jury's answers thereto read as follows:

"Special Issue No. 24: Do you find from a preponderance of the evidence that the plaintiff drove said Chevrolet coupe near the center of the street at a point where cars would be expected to approach through said intersection from the opposite direction?" Answer: "Yes."

"Special Issue No. 25: Do you find from a preponderance of the evidence that the act of plaintiff in driving said Chevrolet coupe near the center of the street at a point where cars would be expected to approach through said intersection from the opposite direction was an act of negligence on his part?" Answer: "No."

"Special Issue No. 26: Do you find from a preponderance of the evidence that the act of plaintiff in driving said Chevrolet coupe near the center of the street at a point where cars would be expected to approach through said intersection from the opposite direction was a proximate cause of the collision?" Answer: "Yes."

"Special Issue No. 27: Do you find from a preponderance of the evidence that plaintiff was driving said Chevrolet coupe with one arm resting on the open window thereof and his arm and elbow extending outside of said car at the time and place of the accident?" Answer: "Yes."

"Special Issue No. 28: Do you find from a preponderance of the evidence that the act of plaintiff in driving said Chevrolet coupe with one arm resting on the open window thereof and his arm and elbow extending outside of said car was an act of negligence on his part?" Answer: "No."

"Special Issue No. 29: Do you find from a preponderance of the evidence that the act of plaintiff in driving said Chevrolet coupe with one arm resting on the open window thereof and his arm and elbow extending outside of said car was a proximate cause of his injuries?" Answer: "Yes."

Appellants pleaded the foregoing acts as contributory negligence on the part of appellee. They here contend that since the jury found that appellee (1) drove his car near the center of the street, and (2) with his arm resting on the open window and his elbow extending outside the car; and that since the jury found that each of these acts of appellee was a proximate cause of his injury, it was the duty of the court to render judgment for appellants; and that if there is any doubt about this, then the answers of the jury were so conflicting that no judgment could be rendered.

We do not sustain these contentions. It is true that the jury found that appellee drove "near the center of the street at a point where cars would be expected to approach from said intersection from the opposite direction," but they also found in answer to the following question that this was not negligence on the part of appellee. It is also true that the jury found that plaintiff was driving "with his arm resting upon the open window" of the car, and "his arm and elbow extending outside of said car"; but they also found that this was not negligence. It is the well-settled rule in this state that in order to defeat recovery on the part of an injured person by reason of contributory negligence, there must be a concurrence of (1) negligence on the part of the injured person, and (2) that such negligence must have been the proximate cause. St. Louis S. F. & T. Ry. Co. v. Gore (Tex. Civ.App.) 69 S.W.(2d) 186; San Antonio & A. P. Ry. Co. v. Behne (Tex.Com.App.) 231 S.W. 354; City of Dallas v. Maxwell (Tex.Com.App.) 248 S.W. 667, 27 A.L.R. 927; Houston & T. C. R. Co. v. Werline (Tex.Civ.App.) 84 S.W.(2d) 288; Texas & N. O. R. Co. v. Kveton (Tex.Civ.App.) 48 S.W.(2d) 523.

Nor do we sustain the contention that there is an irreconcilable conflict in the answers of the jury to the foregoing questions. There is no conflict between the answers of the jury that appellee did the acts charged as contributory negligence, and its answers that such acts were not negligence. Nor is there any conflict between such nonnegligence findings and the findings that such acts were "a proximate cause" of appellee's injury. If appellee's acts did nothing more than furnish or give rise to the reason by which his injury was made possible, they cannot be the basis for the defense of contributory negligence, unless such acts were also negligent. Sledge v. Panhandle & Santa Fe Ry. Co. (Tex.Com.App.) 45 S.W.(2d) 1112. And this is true even though the injury would not have happened but for such condition.

In connection with the above-quoted special issues Nos. 27, 28, and 29, appellants requested, but the court refused to submit, the following special issue:

"Do you find from a preponderance of the evidence that the act of plaintiff in driving said Chevrolet coupe with one arm resting on the open window thereof and his arm and elbow extending outside of said car, was the sole cause of his injuries?"

Appellants contend that the evidence raised the issue of sole proximate cause, and that the court erred in refusing to submit the requested issue. We do not sustain the contention. By submitting special issues 27, 28, and 29, the court inquired if appellee was driving his car with one arm resting on the open window and extending outside, if this was negligence and "a proximate cause." The jury found that such act was not negligence, but was "a proximate cause" of appellee's injury. Thus the court submitted all the elements of the particular act of contributory negligence pleaded; and the jury refused to sustain the defense by finding that the alleged act of contributory negligence was not negligence. To be within the meaning of "proximate cause" as an element of contributory negligence,...