Wright v. McCoy

• Decision Date: 29 October 1937
• Docket Number: No. 1713.,1713.
• Parties: WRIGHT v. McCOY.
• Court: Texas Court of Appeals

110 S.W.2d 223

WRIGHT v. McCOY.

No. 1713.

Court of Civil Appeals of Texas. Eastland.

October 29, 1937.

Appeal from Taylor County Court; John Camp, Judge.

Action by W. P. Wright against O. D. McCoy, wherein defendant filed a demurrer and a cross-action. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

Smith & Eplen, of Abilene, for appellant.

Scarborough & Ely, of Abilene, for appellee.

FUNDERBURK, Justice.

W. P. Wright, owner of a truck injured in a collision with a truck owned by O. D. McCoy, brought this suit to recover damages. The defendant answered by general exception and general denial. In addition thereto, by way of cross-action, he alleged a cause of action against the plaintiff for damages to defendant's truck injured in the same collision. Each truck was at the time of the accident operated by an agent or servant of the owner. In the causes of action alleged by each party against the other there were several grounds of negligence, but, since all but one in each were not sustained by the evidence or special verdict of the jury, we shall limit consideration to those that were sustained.

The jury, by its verdict, found (1) "that the driver of the defendant's truck was operating defendant's truck to the left of the center of the road at the time and place of the collision"; that such act (2) "was the proximate cause of the collision." Plaintiff's damages were found to be the aggregate sum of $158.50. The jury also found (1) "The driver of plaintiff's truck was negligent in failing to stop in order to permit defendant's truck to negotiate the bridge in question"; and that that omission (2) "was the proximate cause of the collision in question." Defendant's aggregate damages were found to be the sum of $70.

The undisputed evidence showed that Wright's truck was going north and McCoy's truck south upon a highway, the paved, traveled surface of which was 15½ feet wide. The collision occurred from 20 to 35 feet south of a bridge. The bridge was 39 feet long. A paved, traveled way over it was 17 feet 10 inches wide, with an 18½ feet clearance between wooden banisters. Plaintiff's truck was 7 feet 3 inches wide, and defendant's truck between 7 feet 3 inches and 7 feet 6 inches wide.

The court rendered judgment to the effect that neither party recover anything against the other. The plaintiff has appealed.

Under the undisputed facts, can it be true, as found by the verdict, that the driver of defendant's truck was operating same to the left of the middle of the road at the time and place of the collision; that that was the proximate cause of the collision, and yet it be also true, as further found, that the driver of plaintiff's truck was negligent in failing to stop in order to permit defendant's truck to "negotiate" the bridge in question, and that such negligence was the proximate cause of the collision, although the speed at which he was driving the truck at the time and place of the collision was not a proximate cause?

The collision did not occur on the bridge. The evidence showed conclusively that it occurred not less than 20 feet, but most probably 35 feet from the bridge. It is obvious, therefore, that it was not necessary for plaintiff's truck to stop "in order to permit defendant's truck to negotiate the bridge." Since defendant's truck, as shown by the undisputed evidence, did "negotiate" the bridge without plaintiff's truck having stopped, the fact is thereby conclusively demonstrated, we think, that the driver of the plaintiff's truck could not have reasonably foreseen that, if he failed to stop, defendant's truck, because of such failure, would not be able to "negotiate" the bridge. It would seem to be self-evident that an event could not be foreseen as likely to result from a particular cause if such cause never in fact existed.

Under the allegations of McCoy's cross-action the only duty of Wright's truck driver to stop was to enable McCoy's truck driver to cross the bridge. That duty arose from the fact (alleged) that the bridge was too narrow to permit the two trucks to pass each other safely while crossing the bridge, and McCoy's driver had the right of way because he was first to reach the bridge. The undisputed evidence having shown that McCoy's truck had crossed over the bridge before Wright's truck ever reached the bridge, and that the bridge was 2 feet and 4 inches wider than the road approaching the bridge, the only conclusions permissible are that the collision was caused solely by McCoy's truck not being on its right-hand side of the road, or Wright's truck not being on its right-hand side of the road, or neither truck being on its right side.

It cannot be said, we think, that of these three alternatives, the evidence conclusively established any one of them. Upon the motion to render judgment, the court could not, therefore, give any effect to the findings of the jury, or, in other words, could not treat the facts found by the jury the same as undisputed and conclusively established facts. It is, therefore, our view that the court should not have given judgment on the verdict for or against either party, but, in response to appellant's third motion, should have set aside the verdict and ordered a mistrial.

The point is made that the court should have disregarded that part of the verdict finding that negligence of the plaintiff's driver was the proximate cause of the collision and rendered judgment for the plaintiff upon the other issues, because there was no defense of contributory negligence pleaded by the defendant. If it be granted that a special plea of contributory negligence was necessary in order to be available as a defense and that there was no such pleading in the case, it would not follow necessarily, we think, that the court under the circumstances of this case should have rendered judgment in disregard of the verdict. Plaintiff made no objection to the submission of any of the issues. While by virtue of the statute (R.S.1925, art. 2211 [as amended, Vernon's Ann.Civ.St. art. 2211]) the court, upon proper motion and notice, was authorized to render judgment in disregard of an issue "that has no support in the evidence," we do not believe that such action would be warranted by said statute solely upon the ground of the lack of pleadings to tender the issue.

It has long been a settled legal proposition in this state that a defense of contributory negligence, not inferable from the allegations of plaintiff's pleadings, and not conclusively shown by the evidence, must, in order to be available to a defendant, be specially pleaded by him.¹ "In most jurisdictions, as a general rule," says the text of Corpus Juris, "contributory negligence is regarded as a special and affirmative defense, which in order to be available to defendant must be specially pleaded by him." 45 C.J. 1115, § 692. Decisions of Texas courts cited as supporting the text are: Dublin Cotton Oil Co. v. Jarrard, 91 Tex. 289, 42 S.W. 959; Missouri P. Ry. Co. v. Watson, 72 Tex. 631, 10 S.W. 731; Texas & N. O. Ry. Co. v. Rooks (Tex.Com.App.) 292 S.W. 536; Fort Worth, etc., Ry. Co. v. Lovett (Tex.Civ. App.) 243 S.W. 519; Jones v. Sunshine Groc. Co. (Tex.Civ.App.) 236 S.W. 614; International & G. N. Ry. Co. v. Ash (Tex. Civ.App.) 204 S.W. 668; Missouri, K. &amp T. Ry. Co. v. Whitsett (Tex.Civ.App.) 185 S.W. 406; Lewis v. Texas, etc., Ry. Co., 57 Tex.Civ.App. 585, 122 S.W. 605; St. Louis S.W. Ry. Co. v. Gammage (Tex.Civ.App.) 96 S.W. 645; Dupree v. Alexander, 29 Tex. Civ.App. 31, 68 S.W. 739; San Antonio, etc., Ry. Co. v. Belt (Tex.Civ.App.) 46 S.W. 374; Missouri, K. & T. Ry. Co. v. Jamison, 12 Tex.Civ.App. 689, 34 S.W. 674; Western Union Tel. Co. v. Apple (Tex.Civ.App.) 28 S.W. 1022. See, also, Brown v. Sullivan, 71 Tex. 470, 10 S.W. 288. Other, and mostly later, cases supporting the proposition may be cited as follows: Liner v. United States Torpedo Co. (Tex.Com.App.) 12 S.W.(2d) 552; Roscoe, S. & P. Ry. Co. v. Taylor (Tex.Civ.App.) 191 S.W. 1175; Dunn v. Texas Coca-Cola Bottling Co. (Tex.Civ. App.) 84 S.W.(2d) 545; Northcutt v. Magnolia Pet. Co. (Tex.Civ.App.) 90 S.W.(2d) 632; Leonard Bros. v. Zachary (Tex.Civ. App.) 94 S.W.(2d) 509; Texas P. C. & O. Co. v. Robertson (Tex.Civ.App.) 39 S.W. (2d) 912.

Aside from his cross-action, the defendant's pleading consisted only of a general demurrer and general denial. If, therefore, he pleaded contributory negligence, he did so as a part of the cross-action. We think the allegations of negligence, on the part of plaintiff's driver, appearing in the cross-action, ought not to be considered as a plea of contributory negligence. Certain it is that they did not purport to be such. That, however, it may be granted is not a conclusive test. In order properly to interpret averments of negligence, proximate cause, etc., it is well to consider the duties involved. It is elementary that if there be no duty there can be no negligence. If an act or omission of a person be negligence, it is always because it involved a breach of duty owing to the person injured. Negligence of a defendant as an element in a cause of action for damages involves a breach of duty owing by the defendant to the plaintiff. On the other hand, contributory negligence of a plaintiff involves a breach of duty to himself. If the driver of plaintiff's truck was guilty of contributory negligence it consisted of a failure of duty to exercise ordinary care for the protection of himself and the property in his charge from injury. But, according to the allegations of defendant's cross-action, the negligence there charged was a breach of the duty of exercising ordinary care for the protection of defendant's property in charge of defendant's truck driver. Although both parties in their pleadings treated the fact of the collision as the injury, and for most practical purposes that was no doubt sufficient, yet, upon the question of the proper interpretation of the pleadings to determine...