Opinion
No. 3747.
November 19, 1929. Rehearing Denied November 28, 1929.
Appeal from District Court, Dallas County; F. E. Wilcox, Judge.
Suit by A. D. Nix and wife against the Dallas Railway Terminal Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
This suit by appellees, A. D. Nix and his wife, against appellant, Dallas Railway Terminal Company, was for damages for injury to Mrs. Nix, suffered February 5, 1927, when she was struck by one of appellant's street cars at the curve in its tracks at the intersection of Austin and Commerce streets in the city of Dallas. Mrs. Nix and her husband alighted from the front part of a car, designated in the evidence as "car No. 1," when, moving north on Austin street, it stopped on the south side of Commerce street. Having alighted from said car No. 1, Mrs. Nix had passed in front of it, going west on Commerce street, when she was struck by the "overhang" of said car as it moved east into Commerce street on the curve above referred to, and thereby was thrown against and under another car, designated as "car No. 2" in the evidence, which was moving south from Commerce street to Austin street. The trial court submitted to the jury special issues as follows, and they made findings thereon as indicated:
1. "Were the motormen on car No. 1 and car No. 2 guilty of negligence in attempting to pass each other, if they did, at and near the corner and place of accident, on the occasion in question?" Answer: "Yes."
2. "Was such negligence a direct and proximate cause of the plaintiff Mrs. Nix being struck by car No. 1, if she was, and injured, if she was, on the occasion in question?" Answer: "Yes."
3. "Did the motorman of car No. 1 start his car up to make the turn at the place in question after the motorman on car No. 2 had started his car up and was attempting to make the turn at said place, if he did?" Answer: "Yes."
4. "Was the motorman on car No. 1 guilty of negligence in so doing?" Answer: "Yes."
5. "Was such negligence a direct and proximate cause of the plaintiff Mrs. Nix being struck, if she was, and injured, if she was, at said time and place?" Answer: "Yes."
6. "Was the said Mrs. A. D. Nix prevented from continuing west across Austin street by car No. 2 getting in front of her, if it did, in making the turn at the time and place in question?" Answer: "No."
7 to 10, inclusive, not answered in accordance with instruction of the court to not answer if 6 was answered "No."
11. "Was the motorman on car No. 2 guilty of negligence in failing to back his car after he saw (if he did) the plaintiff Mrs. Nix was in a place of danger, if she was?" Answer: "No."
13. "Did the motorman on car No. 1 start up his car at the place in question without giving plaintiff Mrs. Nix a reasonable length of time to get out of the way of being struck by said car after she had alighted?" Answer: "No."
15. "Have the plaintiffs shown by a preponderance of the testimony that the defendant's motorman on car No. 1 failed to keep a lookout for Mrs. Nix in making the turn on the occasion in question?" Answer: "Yes."
16. "Was said failure, if any, on the part of said motorman, negligence?" Answer: "Yes."
17. "Was said negligence, if any you have found, a proximate cause of the accident to Mrs. Nix, involved in this lawsuit?" Answer: "Yes."
18. "Have the plaintiffs shown by a preponderance of the testimony that the defendant's motorman on car No. 1 failed to warn the plaintiff Mrs. Nix, on the occasion in question, in a reasonable time for her to have avoided said collision?" Answer: "No."
21. "What damages, if any, have plaintiffs sustained by reason of the plaintiff Mrs. Nix being injured, if she was, on the occasion in question ?" Answer: "$2,000."
The jury further found, in response to issue 22 submitted to them, that the injury to Mrs. Nix was not the result of accident; in response to issues 23 to 34, both inclusive, that Mrs. Nix was not guilty of negligence in any way of the respect specified; and in response to issues 26, 38, 39, 40, 41, 43, and 45, that appellee A. D. Nix was not guilty of negligence in any of the respects specified.
On findings made by the jury as stated, the court rendered judgment in appellees' favor for $2,000.
Beall, Worsham, Rollins, Burford Ryburn, of Dallas, for appellant.
E. E. Hurt and Currie McCutcheon, both of Dallas, for appellees.
It will be noted, on referring to the findings of the jury set out in the statement above, that they found, in response to the first one of the issues, that the motormen of both car No. 1 and No. 2 were guilty of actionable negligence in attempting to pass each other as they did; in response to the third one of the issues, that the motorman on car No. 1 was guilty of such negligence in starting his car up to make the turn on the curve after the motorman on No. 2 had started his car up in attempting to make such a turn; and, in response to the fifteenth one of said issues, that said motorman on car No. 1 was also guilty of such negligence, in that he failed to keep a lookout for Mrs. Nix in making such turn.
Appellant insists that, as framed, said first issue and said third issue were respectively, "multifarious," and that the court therefore erred in submitting them. But we think, if the court did so err, the error was not one requiring a reversal of the judgment; for, as said by the court in St. Louis, B. M. Ry. Co. v. Jenkins (Tex.Civ.App.) 182 S.W. 1159, with reference to a somewhat similar issue objected to on a like ground, "no jury of intelligent men would have been misled thereby." And see San Antonio A. P. Ry. Co. v. Stuart (Tex.Civ.App.) 178 S.W. 17; San Antonio, U. G. Ry. Co. v. Dawson (Tex.Civ.App.) 201 S.W. 247; Pullman Co. v. McGowan (Tex.Civ.App.) 210 S.W. 842.
Appellant urges it was also error to submit said fifteenth issue, because, it says, it was "not supported by the pleadings or the evidence," and because, it says further, it "placed a burden upon appellant greater than the law requires, the undisputed evidence being to the effect that she (Mrs. Nix) had alighted from the street car safely and was a pedestrian upon the street, and had cleared the street car from which she had alighted by the time the motorman on car No. 1 started said car." We think there is no merit in the contention. There was both pleading and evidence to support the issue. Questions as to whether the findings of the jury that the motorman's failure to keep such a lookout was negligence, or not, and, if negligence, was a proximate cause of the injury to Mrs. Nix, are not presented by the assignments.
Another contention made by appellant with reference to the special issues submitted is directed at the twenty-first one of said issues, and is based on a ground entirely different from any of those urged in the court below. The contention for that reason should be overruled (article 2237, Rev.St. 1925), and we think it should be also because there is no merit in the objection to the issue on either the ground urged here or on any of those urged in said court.
It is insisted that the findings in response to the sixth, eleventh, thirteenth, fifteenth, and eighteenth issues are in conflict with each other, and therefore that none of them could be made the basis of a judgment. Whether that is true or not need not be determined here, because, without such findings, those made in response to the first, second, third, fourth, and fifth issues furnished sufficient support for the judgment.
The insistence in the court below, renewed here, that the jury was guilty of misconduct, entitling appellant to a new trial, was entirely without support in the evidence as we understand it.
Contentions not disposed of by what has been said are overruled, because without merit.
The judgment is affirmed.