Wyatt v. Motsenbocker, 16024

• Decision Date: 13 July 1962
• Docket Number: No. 16024,16024
• Citation: 360 S.W.2d 543
• Parties: James W. WYATT, Appellant, v. Donald M. MOTSENBOCKER, Appellee.
• Court: Texas Court of Appeals

Page 543

360 S.W.2d 543

James W. WYATT, Appellant, v. Donald M. MOTSENBOCKER, Appellee.

No. 16024.

Court of Civil Appeals of Texas, Dallas.

July 13, 1962.

Rehearing Denied Sept. 28, 1962.

Bowyer, Thomas, Crozier & Harris, and Wm. W. Sweet, Jr., Dallas, for appellant.

Thompson, Knight, Wright & Simmons and Timothy E. Kelley, Dallas, for appellee.

WILLIAMS, Justice.

Gloria Ann Wyatt, a five year old child, sustained personal injuries when she fell from an automobile owned by Donald M. Motsenbocker. James W. Wyatt, father of the child, brought this suit (1) in his individual capacity to recover hospital and medical bills incurred by him as a result of the injuries sustained by his daughter, and (2) as next friend for the child, to recover damages sustained by her. At the conclusion of a jury trial, a special issue verdict found Motsenbocker to be guilty of negligence which proximately caused the injuries to the minor child, and also found Wyatt guilty of contributory negligence in failing to supervise his child at the time of the occurrence in question. Upon these findings the trial court rendered judgment awarding damages to the child in the amount of $250.00, and denying all relief to Wyatt, individually. Wyatt appeals, limiting his appeal solely to that part of the judgment which denies him recovery.

Appellant's points attack three special issues and jury finding, as follows:

'SPECIAL ISSUE NO. 8-A

'Do you find from a preponderance of the evidence at the time, place and on the occasion in question and before the event in question, James W. Wyatt permitted Gloria Ann Wyatt to be absent from her home without parental supervision for approximately one hour, if you have so found in answer to the preceding special issue?

'Answer 'Yes' or 'No'

'Answer: 'Yes'.

'SPECIAL ISSUE NO. 8-B

'Do you find from a preponderance of the evidence that such conduct on the part of James W. Wyatt, if any you have found in answer to the preceding special issue, was negligence, as defined herein?

'Answer 'Yes' or 'No'

'Answer: 'Yes'.

'SPECIAL ISSUE NO. 8-C

'Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to the preceding special issue, was a proximate cause as defined herein, of the injuries to Gloria Ann Wyatt at the time, place and occasion in question?

'Answer 'Yes' or 'No'

'Answer: 'Yes".

Appellant contends that (1) there was no evidence to sustain an affirmative finding of the jury to such issues; (2) that the court erred in not sustaining appellant's motion to disregard the answers of the jury to these issues and enter judgment for appellant on the balance of such verdict; and (3) that the court erred in overruling appellant's motion for new trial on the ground that there was insufficient evidence to sustain the answer of the jury to these issues.

In considering appellant's 'no evidence' and 'insufficient evidence' points, we are guided by the rules announced by Chief Justice Robert W. Calvert of our Supreme Court in his Article entitled 'No Evidence' and 'Insufficient Evidence' points of error, Texas Law Review, Vol. 38, pp. 361, 372, and also by the Supreme Court in Re King's Estate, 150 Tex. 662, 242 S.W.2d 660. Bearing in mind these rules it has become necessary for us to review carefully the entire statement of facts. We summarize herewith the material testimony having to do with the issue on contributory negligence of the father.

On April 24, 1960 Wyatt and his wife and three children, ages 5, 3 and 1, lived at 6512 Racine Street, which appears to be a residential street in the City of Dallas. Gloria Ann, age five years and nine months, returned home from Sunday School with the family shortly after 11 a. m. on April 24, 1960, changed her clothes and asked her mother if she could go to the park to play. The park referred to was a playground in connection with a grade school located about two blocks from the Wyatt home. Mrs. Wyatt refused Gloria Ann's request to go to the park unattended, but did grant her permission to go across the street, with her younger brother, to play with a little girl named Cindy Nettles, with whom Gloria Ann had played on many previous occasions. Mrs. Wyatt specifically instructed Gloria Ann to return home when Cindy went in to eat, or wheh her mother called her for dinner. Mrs. Wyatt then watched the two children to across the street to Cindy Nettles' home, and then began the preparation of the family meal. Without the knowledge of either Mr. or Mrs. Wyatt, Gloria Ann and her brother apparently left Cindy Nettles' home and went up the street to the playground. It was not until about 12 o'clock noon that either Mr. or Mrs. Wyatt knew that Gloria Ann and her brother had left the Nettles' home and gone to the playground. The fact was brought to their attention when Mr. Motsenbocker came to their house about noon and informed them that their daughter had been run over by his automobile and had been injured. There was no conflict in the testimony but that Gloria Ann was a normal child of average intelligence. She had never disobeyed instructions and gone to the playground on previous occasions.

The circumstances surrounding the accident which resulted in Gloria Ann's injuries are rather unusual and the only testimony concerning this is from the appellee Motsenbocker. He lived about 1 block south of appellant's home and on the day in question he was at the playground with his four-year-old son engaged in flying a kite. He had parked his automobile at the curb adjacent to the playground, on an incline. His automobile was a 1957 Chevrolet with a standard transmission, with the ignition controlled by a key on the dashboard. When the key was turned this would engage the starter and the engine. Appellee had left the key in his car while he engaged in flying the kite, and the car was left in reverse gear. The emergency brake was not engaged. According to appellee, Gloria Ann and her little brother, whom he knew, joined appellee and his son in the kite flying operation. About noon appellee informed Gloria Ann and her brother that he would take them home in his car and told all of the children to go and get in his car and wait for him until he brought in the kite. The children all proceeded to get into the car, after which the motor of the car started and the car backed down the incline. There is no evidence as to which of the children turned on the ignition and started the car. After the motor started, Gloria Ann, in attempting to get out of the door of the car, fell under the wheels of the car sustaining her injuries. The testimony was uncontradicted to the effect that Gloria Ann had been instructed by both her parents not to operate any of the instruments on the dashboard of an automobile. She had never violated these instructions nor was there any evidence she had ever violated instructions concerning where to go and when to return.

It is elementary that the burden of proving contributory negligence and proximate cause was on the appellee. In order to establish contributory negligence and proximate cause a defendant must prove (1) that the victim's conduct was the cause of the injury or damage, i. e., that, but for some act or omission on his part, the harm would not have been done, and (2) that he could have foreseen or anticipated the event and prevented it from happening by acting otherwise than he did. 30-B Tex.Jur. p. 382. To convict Wyatt of contributory negligence, his actions or failure to act must have been contrary to ordinary care and further, and equally important, the results of his actions or failure to act must have been reasonably anticipated and foreseen by him in exercise of ordinary care. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352,...