Opinion
No. 3910.
November 20, 1930.
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
Action by Ida Muckleroy against the C. S. Hamilton Motor Company. Judgment for defendant, and plaintiff appeals.
Reversed and remanded for new trial.
The suit was by the appellant to recover damages for the alleged wrongful death of her husband, B. B. Muckleroy, and the destruction of a Studebaker automobile. It appears from the petition that an employee of the appellee on September 15, 1929, was driving a Chrysler automobile, owned by the company, eastward along the highway, and B. B. Muckleroy was driving his Studebaker automobile westward along the highway. The two cars collided with great force, causing the death of B. B. Muckleroy. The case was tried before a jury on special issues, and judgment upon their findings was entered in favor of the appellee company, denying the appellant recovery against it.
Appellant filed motion to set aside the verdict of the jury on the ground that the answer of the jury to the special issues submitted to them were contradictory and inconsistent. The court, after hearing the motion, overruled it. The court then acted upon and granted the motion of the appellee to enter judgment on the verdict of the jury in its favor. The case is before this court upon the pleadings of the parties, the findings of the jury, and the judgment of the court, and there is no statement of facts.
The jury made the following findings, as material to state, viz.:
"Question No. 2: Do you find, from a preponderance of the evidence that at the time of the collision, the Chrysler automobile in question was then being operated on the highway at a rate of speed in excess of 45 miles per hour?
"We, the Jury, answer No."
"Question No. 4: Do you find from a preponderance of the evidence that at the time of the collision, the Chrysler automobile in question was then being operated on the left hand side of the center of the highway?
"We, the Jury, answer Yes.
"Question No. 5: If you have answered the foregoing question No. 4 `No,' then you need not answer this question, but if you have answered `Yes,' then you shall answer this question: Do you find from a preponderance of the evidence that the Chrysler automobile in question, being driven on the lefthand side of the center of the highway at the time of the collision, if it was, was a proximate cause of the collision and death of B. B. Muckleroy?
"We, the Jury, answer Yes.
"Question No. 6: Do you find, from a preponderance of the evidence that the operator of the Chrysler automobile in question swerved his automobile immediately before the collision, causing same to collide with the Studebaker automobile operated by B. B. Muckleroy ?
"We, the Jury, answer No."
"Question No. 9: Do you find from a preponderance of the evidence, that the operator of the Chrysler automobile was guilty of negligence at and immediately before the collision in regard to the rate of speed at which he was then operating his automobile?
"We, the Jury, answer No."
"Question No. 11: At and immediately before the collision in question, was B. B. Muckleroy operating the Studebaker automobile on the lefthand side of the center of the highway?
"We, the Jury, answer No."
"Question No. 13: At and immediately before the collision in question was B. B. Muckleroy operating the Studebaker automobile in question on the highway at a rate of speed in excess of 45 miles per hour?
"We, the Jury, answer Yes.
"Question No. 14: If you have answered the foregoing question 13 `No,' then you need not answer this question, but if you have answered `Yes,' then you shall answer this question: Did the act of B. B. Muckleroy, in operating his Studebaker automobile at a speed in excess of 45 miles per hour, if he did, cause or contribute to the cause of the collision?
"We, the Jury, answer No.
"Question No. 15: Was B. B. Muckleroy guilty of contributory negligence In regard to the rate of speed he was operating his automobile on the highway at and immediately before the collision?
"We, the Jury, answer Yes.
"Question No. 16: Was B. B. Muckleroy guilty of contributory negligence in respect to keeping his car under control at and immediately before the collision, to avoid same?
"We, the Jury, answer No.
"Question No. 17: In attempting to pass the defendant's Chrysler automobile was B. B. Muckleroy operating his automobile at a rate of speed greater than 15 miles per hour?
"We, the Jury, answer Yes.
"Question No. 18: In attempting to pass the defendant's Chrysler automobile at a rate of speed greater than 15 miles per hour, if he did, did B. B. Muckleroy cause or contribute to the cause of the collision in question?
"We, the Jury, answer No.
"Question No. 19: Was the collision in question an unavoidable accident, that is, such an event that neither party was guilty of negligence and neither party could foresee or forestall a collision?
"We, the Jury, answer No."
The sole question made on appeal is that of whether or not the answers by the jury will support a judgment thereon. The appellant contends that the answers either required the court to enter a judgment in her favor or have held such answers to be too inconsistent to support any judgment thereon. The appellee contends that the judgment thereon in its favor was required by the answers of the Jury.
W. E. West, of Canton, and Butler, Price Maynor, of Tyler, for appellant.
Thomas, Frank Grady, of Dallas, Tomas G. Pollard, of Tyler, and Wynne Wynne, of Wills Point, for appellee.
It is conceded that it is the clearly followed principle that where the answer by the jury to material special issues are inconsistent, in view of all the special findings, a judgment thereon has not legal support Waller v. Tiles, 96 Tex. 21, 70 S.W. 17; and other cases. And it is believed that giving the proper legal effect to all the special findings, as constituting a given state of existing facts, there arises a conflict and an inconsistency in the answers by the jury such as would legally operate to deny any Judgment being taken thereon. According to the findings of the jury, the driver of the appellee's automobile was operating it (headed east) "on the lefthand side of the center of the highway." B. B. Muckleroy was driving his automobile (headed west) upon the right-hand side of the highway. The appellee's driver was not operating his automobile "at a rate of speed in excess of forty-five miles per hour," and it was not negligence on the part of the driver to run the automobile "at the rate of speed at which he was then operating the automobile." B. B. Muckleroy, however, was driving his automobile "at the rate of speed in excess of forty-five miles per hour," and he attempted to pass the automobile of the appellee "at a rate of speed greater than fifteen miles per hour." A collision resulted, causing the death of B. B. Muckleroy. The collision that resulted was proximately caused by "the Chrysler automobile in question being driven on the lefthand side of the center of the highway at the time of the collision." The collision was not "an unavoidable accident," and the fast driving of B. B. Muckleroy did not, as found in issues Nos. 14 and 18, "cause or contribute to the cause of the collision." Had there been no other findings by the jury, the effect of all such foregoing affirmative facts would be to fix the act of appellee's driver in traveling on the left-hand side of the highway with being in fact the sole producing cause of the collision and the ensuing death of B. B. Muckleroy if B. B. Muckleroy's fast driving did not in fact "cause or contribute to the cause of the collision" and his ensuing death. For the conduct of B. B. Muckleroy could not be regarded as a proximate cause. But in the light of these facts, the further answer to special issue No. 15 must be considered and construed. That finding was that "B. B. Muckleroy was guilty of contributory negligence in regard to the rate of speed he was operating his automobile on the highway immediately before the collision." In the light of the court's definition of contributory negligence which the jury is presumed to have followed and applied to the evidence, the finding so made by the jury must be regarded as intended by them to mean that the rate of speed at which B. B. Muckleroy was driving his car (in excess of forty-five miles an hour) was in fact "some negligence on the part of the deceased B. B. Muckleroy, which, concurring with some negligence on the part of the operator of the Chrysler automobile in question, caused or contributed to the cause of the death of B. B. Muckleroy." The court so defined to the jury contributory negligence. In this meaning of the answer there is an affirmative finding of fact by the jury that driving the automobile in excess of forty-five miles per hour was in itself negligent conduct on the part of B. B. Muckleroy, having an actual share with the act of appellee's driver in being on the lefthand side of the highway in bringing about the collision. Thus the conduct of B. B. Muckleroy would have to be regarded as conduct in itself contributing to the collision as a proximate cause. Mutuality of the wrong is that by which contributory negligence is ultimately determined. St. Louis S.W. R. Co. v. Arey, 107 Tex. 366, 179 S.W. 860, L.R.A. 1916B, 1065; Martin v. Texas P. R. Co., 87 Tex. 117, 26 S.W. 1052; St. Louis S.W. Ry. Co. v. Casseday, 92 Tex. 525, 50 S.W. 125. Therefore, the findings, considered as a whole, are inconsistent and contradictory. The appellee's negligence could not be said to be the sole proximate cause of the collision and without conduct on the part of B. B. Muckleroy having an actual share in bringing on the collision and his ensuing death, unless finding No. 15 be entirely disregarded which cannot be done.
Appellee insists that the judgment could be supported in its favor upon the ground alone that there was no finding by the jury of negligence on the part of appellee's driver in driving upon the lefthand side of the highway. The question of negligence vel non was not submitted to the jury, and there is no express finding of negligence by the jury in the respect mentioned. The fact, however, was found by the jury that the appellee's driver was driving at the time of the collision upon the lefthand side of the highway. Article 801 of the Penal Code expressly provides that: "On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead." In the absence of a statement of facts, in explanation of the situation, we cannot say that the fact found by the jury did not constitute prima facie negligence. The court might have attached that legal effect to the fact, and we cannot assume that it was not so done. There was no request by the appellee to have the issue of negligence vel non in the respect mentioned submitted to the jury.
The judgment is reversed, and the cause remanded for new trial.