Yellow Cab & Baggage Co. v. Smith

• Decision Date: 07 June 1930
• Docket Number: No. 12349.,12349.
• Parties: YELLOW CAB & BAGGAGE CO. v. SMITH et al.
• Court: Texas Court of Appeals

30 S.W.2d 697

YELLOW CAB & BAGGAGE CO. v. SMITH et al.

No. 12349.

Court of Civil Appeals of Texas. Fort Worth.

June 7, 1930.

Rehearing Denied July 5, 1930.

Appeal from District Court, Tarrant County; Hal Lattimore, Judge.

Suit by May Smith, individually and as guardian of the person and estate of Leroy Smith, a minor, joined pro forma by her husband, against the Yellow Cab & Baggage Company. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Lightfoot, Robertson & Scurlock, of Fort Worth, for appellant.

Thompson & Barwise, of Fort Worth, for appellees.

CONNER, C. J.

This suit was instituted in the Ninety-Sixth district court of Tarrant county, Tex., on the 28th day of December, 1927, by May Smith, individually and as guardian of the person and estate of Leroy Smith, a minor. She was joined pro forma by her husband, Joseph H. Smith.

At the time the circumstances referred to took place, the defendant, a corporation, was engaged in the taxicab business in the city of Fort Worth, and in connection therewith, operated a storage garage at 1013-1017 Commerce street, in the city of Fort Worth. During the month of February, 1926, and for some time prior thereto, one Sid W. Richardson, who was living at the Texas Hotel in Fort Worth, was a customer of the defendant, and stored his car at the garage referred to above, for which the defendant charged a rate of approximately $12 per month. During this time the defendant maintained an employee, who stayed in the lobby of the Texas Hotel, to take orders for taxicabs and to attend and render general service to the defendant's customers who stored their cars in the defendant's garage.

About 11 p. m., on February 11, 1926, Sid W. Richardson drove by the defendant's garage on Commerce street in his automobile and requested an employee in charge to send some one over to the Texas Hotel to get his car, in order that it might be stored in the defendant's garage for the night. Thereupon the employee in charge directed John Livingston, a negro, and also an employee of the defendant, to go after the car. John Livingston either walked to the Texas Hotel or rode to that point with Sid W. Richardson. The car, which was a Pierce-Arrow sedan, was found by him near the south entrance of the hotel, headed west toward Main street, in the city of Fort Worth. He got in the car and drove west about half a block to Main street, where he turned south and drove two blocks to Tenth street, where he turned east and headed toward the Yellow Cab Company Garage on Commerce street.

The plaintiff Leroy Smith, at the time of the circumstances which are the subject-matter of this suit, was 11 years of age and had been a newsboy for about five years, selling papers upon the streets of Fort Worth. The boy had finished his work of selling newspapers for the evening and was standing on the southeast corner of the intersection of Tenth and Main streets, waiting for a street car to take him to his home. A valentine which the boy was holding was blown out of his hand by the wind to about half the distance across Tenth street. According to his testimony, he went out into the street, picked up the valentine, turned about face, and had taken about three steps back toward the sidewalk when the automobile driven by John Livingston struck him just as John Livingston had completed the turn from going south on Main street to going east on Tenth street. The force of the impact knocked the boy down, and, as described by the boy, knocked him "over and over." However, the car did not run over him. The negro, John Livingston, driving the car, claimed that the boy "appeared in front of my car," or that he "just jumped in front of the car like that." Both the thigh bones of Leroy Smith were fractured. However, the fractures were simple fractures, as distinguished from compound fractures or compound, comminuted fractures. The boy was taken to a hospital and given proper attention. Dr. Trigg was the doctor who performed the operation of setting his legs on February 17, 1926. The bone in the left leg slipped out of position; so it was necessary that a second operation be performed on February 26, 1926. The plaster cast was removed from the right leg on April 20, 1926, and the boy dismissed from the hospital about April 27, and went to his home. The plaster cast was removed from the boy's left leg about two weeks after he had been dismissed from the hospital.

The boy discarded his crutches about January, 1927. Both Drs. Trigg and Rhodes testified at the time of the trial that the boy appeared to be completely well. Dr. Trigg's testimony was based upon observing the boy walk about on the streets and in the courtroom. However, Dr. Rhodes made an examination of the boy in his office two or three months before the case was tried.

On June 19, 1926, Sid W. Richardson, who was represented by Messrs. Thompson & Barwise, made a settlement with the plaintiffs. As provided in the compromise agreement, Sid W. Richardson paid $1,050 to May Smith and her husband, Joseph H. Smith, and $700 to May Smith as the duly appointed guardian of the person and estate of Leroy Smith. The agreement was termed "a covenant not to sue," and provided that it should not be considered as a release of Sid W. Richardson and that it should not inure to the benefit of the Yellow Cab & Baggage Company. It also provided that the plaintiffs, the parties of the second part, would "pay to the said Sid W. Richardson the sum of $1,750 from and out of any moneys which may be collected from the Yellow Cab & Baggage Company, either by voluntary settlement of the claims of the parties of the second part, or by a full or partial satisfaction of any judgment which may be obtained against the Yellow Cab Company," with 6 per cent. interest thereon from the date of said judgment.

The plaintiffs filed a suit against the Yellow Cab & Baggage Company, alleging, of course, that the injuries sustained by Leroy Smith were the proximate result of the negligence on the part of John Livingston, the colored man who was driving the automobile, and alleged generally the facts set out above, with the exception of the facts regarding the settlement made by Sid W. Richardson. The defendant answered by a general denial, pleaded contributory negligence on the part of the boy Leroy Smith, and also pleaded the settlement made by Sid W. Richardson, alleging that such payment made by him, if not a complete settlement, was at least a settlement pro tanto to be credited on any verdict recovered by the plaintiffs against the defendant.

The only eyewitnesses who testified in regard to the circumstances and conduct of the parties at the time of the accident were Leroy Smith, the injured boy, John Livingston, the negro driving the automobile, and Reece Davis, a policeman. Leroy Smith testified as a witness for the plaintiff, and the other two as witnesses for the defendant. The defendant contended vigorously that the evidence failed to show any negligence on the part of the negro, John Livingston, who was driving the automobile, and that it did show that the boy, Leroy Smith, was guilty of contributory negligence in failing to keep a proper lookout for automobiles. However, on the trial, the case was submitted to the jury on special issues, and the jury returned a verdict to the effect that John Livingston, the driver of the automobile, was guilty of negligence, under the circumstances, in failing to sound a warning just prior to the time the boy was struck; that John Livingston failed to use ordinary care to keep a proper lookout for pedestrians, and that he was negligent in driving the automobile too fast; also that such negligence in each instance was the proximate cause of the accident. The jury also answered the issue of contributory negligence against the defendant. Finally, on the issue of damages, the jury found that Leroy Smith had suffered damage to the extent of $4,000, and that his mother and father had suffered damage to the extent of $1,000. Judgment was rendered in favor of the plaintiffs for these sums on the 12th day of July, 1929.

In submitting the case to the jury on special issues, the court defined "negligence," "ordinary care," "proximate cause," and unavoidable accident." Negligence was defined as "a failure to use ordinary care"; ordinary care as "that care which a person of ordinary prudence would exercise under the same or similar circumstances, and, as to a child, it is such as a child of such age and development would exercise."

The minor testified in part as follows:

"My name in Leroy Smith. I live here in Fort Worth, at 124 Holly. Mrs. May Smith is my mother. I am fourteen years old. In 1926 I was eleven years old. I was going to school then. I was in the second grade. I worked then, selling papers. I would sell papers all over town. I did not have a beat. My school let out at two fifteen. I didn't sell the home editions. I would play around the Star-Telegram until the financial came out at five o'clock or four thirty. The home edition came out about two thirty or three o'clock. I got those papers at the Star-Telegram building. When I went to sell them, I would have the Fair, L. G. Gilbert's, and a few other places, buildings up and down Main and Houston Streets, and at night I sold at the Majestic. I sold them at different buildings up and down Main and Houston Streets. * * *

"Before I was in this accident, I had been selling papers down there about five years. I got second place in line down there by reason of the length of time I was selling papers. We would be playing a game of dominoes or something and we would hear the papers come and we would run and line up for the papers."

In this condition of the evidence, appellant presented the following objection to the charge of the court, to wit:

"Defendant excepts to that portion of the main charge which defines ordinary care and especially that portion `and as to a child, it is...