Wright v. Carey, 2332.

• Court: Court of Appeals of Texas
• Citation: 169 S.W.2d 749
• Docket Number: No. 2332.,2332.
• Parties: WRIGHT v. CAREY et al.
• Decision Date: 05 March 1943

Page 749

169 S.W.2d 749 WRIGHT
v.
CAREY et al. No. 2332. Court of Civil Appeals of Texas. Eastland. March 5, 1943. Rehearing Denied March 26, 1943.

Appeal from District Court, Brown County; A. O. Newman, Judge.

Suit by Mrs. Emma Carey, for herself and as next friend of her minor daughter, Louise Carey, against Sidney Wright to recover damages caused by an automobile accident which occurred while defendant was driving an automobile and plaintiffs were riding therein as gratuitous guests. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and McCartney, Darroch & McCartney, of Brownwood, for appellant.

Callaway & Callaway, of Brownwood, for appellees.

GRISSOM, Justice.

This is a suit based on the automobile guest statute (Art. 6701b, Vernon's Ann. Civ.St.) by Mrs. Emma Carey, a widow, for herself and as next friend of her minor daughter, Louise Carey, to recover damages caused by an automobile accident which occurred

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while Sidney Wright was driving an automobile and Mrs. Carey and Louise were riding therein as his gratuitous guests. The trial resulted in a judgment awarding $1,008 for hospital, doctor and medicine bills, and awarding $500 and $1,000 as compensation for pain suffered by Mrs. Carey and Louise respectively. Wright has appealed.

The jury found (1) that immediately prior to the collision "Wright had turned his face from the front of the automobile and was hugging and kissing Louise Carey"; (2) that the manner in which Wright was driving immediately prior to the collision, while he was hugging and kissing Louise, when his face was turned from the front of the car, "was in heedless and reckless disregard of the rights of Mrs. Carey and Louise Carey"; (3) that the matter inquired about in issue 2 was a proximate cause of the collision and injuries sustained by Mrs. Carey and Louise; (4) that the acts of Wright in driving the automobile at and immediately prior to the collision were due solely on his part to momentary inadvertence or mere inattention to the condition of the road on which he was traveling; (6) that the conduct of Louise toward Wright caused his attention to be distracted from driving the automobile prior to the collision; (7) that Louise's conduct was not negligence; (10a) that the conduct of Louise was not in heedless and reckless disregard of her own safety; (10b) that the conduct of Louise toward Wright was not in heedless and reckless disregard of the rights of Mrs. Carey; (11) that prior to the collision "either Mrs. Emma Carey or Louise Carey failed to keep a proper lookout for their own safety as a person of ordinary prudence would have kept, under the same or similar circumstances"; (12) "that the failure of Mrs. Emma Carey and Louise Carey, or either of them, to keep such proper lookout for their own safety prior to said collision, if either of them did so fail, was negligence * * *"; (13) "that the failure of Mrs. Emma Carey and Louise Carey, or either of them, to keep such proper lookout for their own safety prior to said collision, if either of them did so fail, was a proximate cause of said collision"; (14) "that the failure of Mrs. Emma Carey and Louise Carey, or either of them, to keep such proper lookout for their own safety prior to said collision, if either of them did so fail, * * *" was not the sole proximate cause of said collision.

The Court recited in the judgment that there was no evidence to support the answer to issue 4, that the accident was due to momentary inadvertence or inattention on the part of Wright to the condition of the road.

Appellant's first and second points of error are as follows:

(1) "Contributory negligence on the part of a guest is a defense to a suit brought under the `guest statute' and jury findings of contributory negligence are a bar to recovery in such action";

(2) "The jury's findings in answer to Special Issues 11, 12 and 13 that Plaintiffs were negligent in failing to keep a proper lookout for their own safety and that such failure was the proximate cause of the collision entitled Defendant to judgment, and the Court erred in ignoring such findings and in rendering judgment against him."

It appears to be universally recognized that a plaintiff's contributory negligence does not bar recovery against a defendant for an injury intentionally inflicted by the defendant. It is further recognized that a plaintiff's contributory negligence does not bar recovery in cases of discovered peril. McDonald v. International & G. N. R. Co., 86 Tex. 1, 22 S.W. 939, 40 Am.St.Rep. 803. Also see Morgan & Bros. v. Missouri, K. & T. R. Co., 108 Tex. 331, 193 S.W. 334; McAdoo v. McCoy, Tex.Civ.App., 215 S.W. 870, writ refused; Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663; Sugarland Industries v. Daily, 135 Tex. 532, 536, 143 S.W.2d 931; Montgomery v. Houston Electric Co., 135 Tex. 538, 144 S.W.2d 251; Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 149, 70 S.W.2d 397; Galveston, H. & S. A. R. Co. v. Zantzinger, 92 Tex. 365, 48 S.W. 563, 44 L.R.A. 553, 71 Am.St.Rep. 859; 15 T.L.R. 125; 49 Am.St.Rep. 30, note; 54 Am.St.Rep. 216 note; 62 Am.St.Rep. 226, note; 69 Am.St.Rep. 741, note; 71 Am.St.Rep. 866, note; 81 Am.St.Rep. 928, note; 83 Am.St.Rep. 258, note; 114 A.L.R. 837, note. In McDonald v. International & G. N. R. Co., 86 Tex. 1, 12, 22 S.W. 939, 943, 40 Am.St.Rep. 803, Judge Gaines said: "The question, then, is whether the ordinary negligence of the plaintiff will defeat a recovery when the negligence of the defendant contributing to the injury is gross."

After discussing authorities and declaring that the doctrine or rule of comparative

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negligence is not recognized in Texas, he said: "The doctrine that any degree of negligence which may be gross on part of a defendant will enable a plaintiff to recover, notwithstanding his own negligence, is unsound in principle."

In 2 Restatement of the Law of Torts, § 482, pp. 1261 and 1262, the applicable rule is stated thus:

"(1) Except as stated in Subsection (2), a plaintiff's contributory negligence does not bar recovery for harm caused by the defendant's reckless disregard for the plaintiff's safety.

"(2) A plaintiff is barred from recovery for harm caused by the defendant's reckless disregard for the plaintiff's safety if, knowing of the defendant's reckless misconduct and the danger involved to him therein, plaintiff recklessly exposes himself thereto."

2 Restatement of the Law of Torts 1293, defines "reckless disregard of safety" as follows: "The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him."

In 38 American Jurisprudence 854 it is said: "There is an abundance of authority for the proposition that contributory negligence is not a defense in an action based upon wilful or wanton misconduct or intentional violence. Even in jurisdictions where the doctrine of...