Wilson v. Southern Traction So.

• Decision Date: 09 November 1921
• Docket Number: (No. 3051.)
• Citation: 234 S.W. 663
• Parties: WILSON v. SOUTHERN TRACTION CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

234 S.W. 663

WILSON v. SOUTHERN TRACTION CO.^*

(No. 3051.)

Supreme Court of Texas.

November 9, 1921.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by J. A. Wilson against the Southern Traction Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which reversed the judgment and remanded the cause for new trial (187 S. W. 536) and the plaintiff brings error. Judgment of the Court of Civil Appeals reversed, and cause remanded for determination of an assignment in error not ruled upon by that court.

Pat. M. Neff, of Waco, and Chas. L. Black, of Austin, for plaintiff in error.

Nat Harris and Spell & Sanford, all of Waco, and Templeton, Beall & Williams, of Dallas, for defendant in error.

GREENWOOD, J.

This was an action to recover damages for personal injuries brought by plaintiff in error against defendant in error. Plaintiff in error was injured by one of defendant in error's street cars striking a laundry wagon, driven by plaintiff in error.

There was pleading and proof to support the defense that the plaintiff failed to exercise ordinary care for his own safety in going or remaining on the street car track, and that such want of ordinary care continued to the time of the collision and was a proximate cause of plaintiff's injury.

A judgment for plaintiff in error was reversed by the Austin Court of Civil Appeals on the ground that reversible error was pointed out in the trial court's charge by the objection thereto of defendant in error that it ignored "the concurrent negligence of the plaintiff in connection with the acts and negligence, if any, on the part of the defendant company or its agents, servants, and employees in charge of the car," since, "if the concurrent acts of negligence operated with the concurrent act of the defendant, then the doctrine of discovered peril would not apply, and the plaintiff would not be entitled to recover." Chief Justice Key filed a dissenting opinion holding that, in cases of discovered peril, the law was settled that negligence on the part of an injured party, though continuing up to the very time of injury, and though constituting a proximate cause thereof, was not available as a defense. 187 S. W. 536 to 547.

The principal question for our decision is whether plaintiff in error was entitled to recover for an injury inflicted on him, as a proximate result of defendant in error's failure to exercise ordinary care in the use of the means at hand, consistent with the car's safety, to avoid his injury, after realizing the peril of plaintiff in error, notwithstanding the negligence of plaintiff in error continued in active operation as a concurring proximate cause of the injury until the moment of its occurrence. The settled rule of decision in Texas admits of no answer to the question save in the affirmative.

We are not concerned here with the principle which would apply to relieve defendant in error of liability if plaintiff in error's conduct had been such that the injury could not have been avoided by the exercise of ordinary care on the part of the operative of the car. In that event, plaintiff in error's own negligent conduct would have been the sole, proximate cause of the injury. The objection to the charge assumed that the negligence of defendant in error in failing to avert the injury after its motorman realized the peril of plaintiff in error became and was a proximate cause of the injury, concurrent with the negligence of plaintiff in error.

The oft-repeated decisions of this court that contributory negligence was no defense to causes of action arising under the law of discovered peril necessarily involved that a negligent act or omission on the part of an injured plaintiff would not defeat his recovery under the law of discovered peril, notwithstanding the proximate cause of his injury was the negligent act or omission of the plaintiff, in concurrence with the negligence of the defendant. For, in order for an act or an omission of a plaintiff to constitute contributory negligence in any personal injury case, it must not only amount to a want of ordinary care, but it must, in concurrence with a negligent act or omission of a defendant, become the proximate cause of the plaintiff's injury. Martin v. Railway, 87 Tex. 121, 26 S. W. 1052; Railway Co. v. Ormond 64 Tex. 489; Railway Co. v. Danshank, 6 Tex. Civ. App. 385, 25 S. W. 297.

The pronouncements of this court, denying the defense of contributory negligence in discovered peril cases, have been progressively more and more emphatic. In G., C. & S. F. Ry. Co. v. Lankford, 88 Tex. 502 to 505, 31 S. W. 355, the negligence of Lankford was necessarily active, continuous, and operative to the moment of his wife's injury. It was conceded at the outset of the opinion that Lankford was guilty of negligence, consisting of his driving a team along a road beside a railroad track until a car collided therewith, injuring his wife, when a few yards further from the track there was another road which Lankford could just as conveniently have taken. Nevertheless the court held that Lankford's continuous negligence would not defeat his recovery of the damages sustained by his wife if defendant's agents were guilty of negligence in failing to avert the collision after Lankford, accompanied by his wife, had gotten in a position of peril, and defendant's agents had knowledge of the peril.

The rule excluding the defense of contributory negligence in discovered peril cases and the reason...