*1
ed
approval
them to the court for
and tolerated by
judge
the trial
who exercised
incorporation in
divorce.
degree
the decree of
of restraint seldom seen.
Francis,
(Tex.
Francis v.
be held it as to invalidate parties of their
cable settlement
property rights encouraged, not should be
discouraged. then have agreement will the law of contracts legal whatever force COMPANY, BELL Inc., Appellant, CAB give Jones, will it. Ex Parte See al See (1962).” Tex. 358 S.W.2d Cornell, (Tex.
so Cornell v. 413 S.W.2d VASQUEZ al., Ascencion Appellees. Gomez et Sup., 1967). No. 14694. Court of Civil of Texas. trial court not err award did ing plaintiff Thousand sum Fifteen San Antonio. rea ($15,000.00) Dollars as No/100 Oct. attorneys’
sonable fees. Rehearing Denied Nov. testimony concern record There expended ing time and effort
attorneys. may consider The trier of facts case, the time
the nature and facts
requirements, money involved amount of the court other factors. Here factors, testimony plus
aware of all such plaintiff. counsel for There
sufficient of the court’s evidence great there was neces
finding. Certainly
sity part the assistance Hatch, Life
rendered her. Texas Ins. Co. v. Tex.Civ.App., (Eastland, ref., m.); Burleson v. error w. o.
Morse,
(Galveston, Tex.Civ.
App., ref., o. also error w. Trad Products Co. v. Gulf States
Ferrous Tex. (Houston, S.W.2d 292 affirmed, den.;
Civ.App.,
reh.
(I960)).
We
contention that the is excessive prejudice. a result of It is bias and
interesting prej to note that the bias and engen
udice supposedly referred to was promoted by
dered or conduct of
appellant during the trial. In our yet it
such conduct was intolerable *2 Green, Jr., Antonio,
Hubert W. San for appellant. Southers, Southers,
Frank R. Mendel- sohn, Lyons, Antonio, Goldberg & San for appellees.
BARROW, Chief Justice. appeal primarily relates ap- plication humanitarianism or rescue doctrine. A judgment non ver- obstante whereby appellee edicto was entered Ed- Vasquez damages ward recovered appellant $3,170,individually, sum expenses for his medical and loss of con- $25,000 and in the tributions, sum of next nineteen-year-old son, friend Vasquez, Ascención Gomez struck one of' taxicabs which operated by Daniel Vera Auces scope employment. of his The accident was the result of some- and apparently taxicab, run over what bizarre set of facts. About 2:00 a.m. helped to her feet friend May 20, 1966, driving Ascención was a who returned to the scene after acci- sedan Chevrolet enroute his work girls dent and both fled to the west. Po- newspapers. for a wholesale distributor of lice officers arrived in a minutes and few passed high A white car rate him at a hospital by Ascención was taken *3 speed proceeded as he north on 21st Street girls ambulance. The had fled two Durango the near Street intersection of apprehended were the and returned to City Twenty-first in the of San Antonio. by police. scene the Street, Durango Street and as he ends Durango Measurements show that Street intersection, neared this “T” he noticed and, only although is 27 feet there is wide utility pole that a white car had run into a Durango one 21st and block on between and the front end was in the air extended Streets, 24th feet this block is over 1300 against pole angle the at an the head- with long. boy approximately struck was lights burning. still He noticed sev- also 250 feet west 21st This area Street. people running eral the car to the very dark, street in that there is one Durango west He turned his on Street. light these intersections. This between two Durango car the and to west on Street it particularly night, was on as was this shortly body of a girl thereafter saw the very falling cloudy spotted light rain lying Durango in the eastbound lane of in the area. stopped He his car the west- Street. body bound lane near her and went to her Although liability vigorously was con- headlights He left the assistance. trial, complaint tested at the there no car burning bright (upper) the beam. appeal primary jury findings the Shortly got girl, the he heard after to negligence proximately causing the acci- car, a which turned out to be taxicab, by keep dent Durango turn from 24th the failure of Auces to onto proceed Street and east towards him. He proper lookout, taxi- properly apply to the and attract the girl stood over the tried to brakes, ex- by operating cab’s at an and operator approach- attention the speed the circum- cessive rate of under by waving shouting. car his arms however, it Appellant urges, stances. stop, he realized car would not When the take-nothing judgment to a was entitled jump The taxi- tried to on the hood. findings Ascen- jury’s based on the in a bad leg resulting cab struck his left proxi- contributorily negligent ción was near the fracture of same knee. failing mately causing the accident move one side in time avoid proceeding testified that he was Auces by hit the evi- cab. There is sufficient m.p.h., Durango about east on Street from the support findings dence to these by passenger. He saw accompanied However, testimony of Ascención alone. headlights fac- stopped bright car with the ap- the trial court entered just boy until ing him, did not see the but pellee jury findings that im- based on the boy appeared impact when before mediately Ascención struck before was ap- He jump position of his taxicab. front in a girl taxicab the taxicab, stop peril by approaching about and came to plied the brakes attempted rescue boy’s car. and that Ascención beyond the length a half supported waving substantially her from this testimony This Further, in at- shouting. passenger, Vicinte hands testimony of tempting girl, Ascención act- noticed to rescue Gutierrez, although he G. prudent would stopped ordinarily car. ed as an east of wrecked car cir- or similar have acted under same stopped, Shortly after the taxicab Jose- street cumstances. in the phine girl lying Valdez, Appellant urges, point seeking judgment struck the taxicab. In addition to however, has contributory negli- the rescue doctrine findings under the nothing had evi- in that it gence, urges that there is no here appellant street, al- girl lying in or, alternative, the do with the evidence dence certainly approaching taxicab though its insufficient to ordinarily in the lane of traffic which prudent acted as general any her in placed attempting lying, the rescue. re- includes rule is stated above finding is in con- event, urges it that such brought about neg- peril is quirement that the flict with the defendant. through that there is ligence. It also asserts requirement probably based on support the pleading proper finding system proposition that our tort doctrine, and that of the issues under usually predi- liability duplicitous con- defendant supporting same was *4 established, may upon be weight on the cated fault. stitutes a comment causing however, in complain- negligence presents points by his evidence. It two be perilous sought to admitted in situation of the one ing testimony erroneously rescued, after It or toward rescuer one instance and refused in another. Restate- $24,000 attempt rescue. finding begun that the had to urges also Second, 472, earning Law capacity after loss of Ascención ment § b; age Am.Jur., Negligence, ex- 38 twenty-one years he reaches Comment § 195, 189, 229; A.L.R. Lia- cessive. Annotation 158 to, of, seek- bility injury for death or recogni The rescue doctrine is a another, ing Negligence d. to rescue § impulse impels tion of noble of defendant. by rushing man to deeds into of heroism danger to aid As his fellow man. Justice however, mind, kept It be must Cardozo stated landmark case finding appel jury that there no Wagner Ry. Co., v. N. International 232 the immi negligent lant’s conduct created 437, 176, (1921): Y. 133 19 1 N.E. A.L.R. a find peril girl, nent nor can such “Danger cry invites rescue. The dis an implied the absence of such be law tress the summons relief. The to objection to issue view ignore not mind these reactions of the for failure to submit court’s tracing consequences.” conduct its to 279, Rules of such Rule issue. Thus, general rule, as a “one who sees a Procedure, up based Therefore, Civil cases in imminent and serious peril” ‘imminent doctrine have on the through of another cannot key a doctrine in that to such charged contributory negligence, created negligent act is that the defendant’s law, life, as a matter of risking own gave birth apparent peril in turn injury, attempting effect or serious to in an at plaintiff’s injury conduct rescue, provided rash not apparent escape tempt from that ly recklessly made.” 158 Annotation Neff, 87 Co.v. N. R. See International & G. 190; Halepeska A.L.R. v. Inter Callihan Thode, Im (1894); Inc., (Tex.Sup. ests, 371 S.W.2d Texas, 40 Emergency in minent Peril Kelley 1963); Alexander, v. 392 S.W.2d 441, 443,447. Tex.Law Rev. (Tex.Civ.App., writ San Antonio principal question to be determined n.r.e.). ref’d care to is the standard of appeal on this res- during his
Appellees
the rescue be exercised
invoked
ap-
particularly the
attempt, and
cue
more
allegation,
doctrine
their
which was
this stand-
to,
ren
verdict to
excepted
stopped
plication of
that Ascención
encourage
Obviously,
society
is to
ard.
der
and to rescue
assistance
recognize that a
attempts, it must
street,
doing was
lying in the
and while
reasonably prudent person
great
will take
attempt.
cue
It cannot be said that the
er
risks to effectuate a rescue and
given
often
appellees requested
or that
Therefore,
great
must act under
stress.
issues or
involving
instructions
a lesser
the legal
party
degree
standard
care which a
of care such
“rash”
or “reck-
required
during
a rescue at
less.”
court,
exercise
In
appellees willing-
the trial
tempt
ly accepted
must be lowered.
words as
ordinary pru-
Such
the standard of
“reckless,”
“rash”,
“wanton,”
“impru
person.
dent
Appellees urge, however, that
dent”
in the jury
have been used
our courts
finding
effect that
at-
limiting
right
intentionally
tempting
rescuer’s
to rescue the
danger
exposing
assume
himself
peril,
Ascención acted as an
Ry. ordinary
known risk. See Panhandle &
prudent person
S.F.
would have acted
Haywood,
(Tex.Civ.
Co. v.
under the
same or similar circumstances
App.,
ref’d);
writ
Red
has the legal
Amarillo
effect
cancelling
or ex-
Longacre,
(Tex.
dick v.
cusing
prior
App.1904, writ).
not act in a rash or reckless manner on
*5
question
the occasion in
or
excused
can-
hand,
On the other
other authorities
celled other jury findings
plaintiff
that
lower the
by requiring
standard of care
had not acted
ordinary prudent per-
as an
the rescuer to exercise the standard of
son. The basis for
holding
is not
any
person
conduct of
ordinary prudent
clear, in that the Court
without
discussed
under
peculiar
brought
circumstances
distinction the “imminent peril,” “sudden
by
about
Halepeska
attempt.
rescue
emergency”
doctrines,
and “rescue”
Interests, Inc.,
supra;
Callihan
South-
there
findings
plaintiff
were
that
as well
Hydrocarbon
Thompson,
western
Co. v.
parties
as the third
were in imminent
S.W.2d 823
Waco
In
holding,
of its
the Court cited:
n.r.e.) Prosser,
Torts,
writ ref’d
Law of
Goolsbee v. Texas
& N.O. R.
150 Tex.
Ed.,
317;
3d
p.
Restatement of the
§
528, 243
(1951);
S.W.2d 386
and Pan-
Law of
Second,
Comment c.
§
Ry.
handle
Haywood, supra.
& S.F.
Co. v.
In each of these
jury
cases the
found that
It
differing
seen that whether
plaintiff
contributorily negli-
was not
degrees of care and caution are submitted
gent and, furthermore,
is an
appropriate
or
Goolsbee
given,
jury
instructions
imminent peril
emergency
or
case. These
that a
understand
rescuer’s stand
keyed
doctrines are
to a
that de-
ard
per
in
conduct is determined
negligent
fendant’s
conduct created
spective
specific
factual circum
supra,
emergency.
Thode,
or
facing
stances
the rescuer on this occa
There was no such
in our
sion.
case,
authority
and we
have found no
Here the standard of conduct
an or-
a jury finding
party
engaged
that a
dinary prudent man
the same
under
attempt
away
with his com-
similar circumstances was submitted with-
duty
mon-law
to exercise at least some care
objection
out
by appellees.1 There was
safety.
for his own
specific
given
instruction or issue
for
jury
apply
a lower standard of care
Here the same standard of con
submitted,
while Ascención
res-
engaged
objection
his
duct was
without
Appellant objected
rash,
to the rescue series
Ascencion’s conduct was
reckless
special
inquire
imprudent.
for failure to
issues
appellees,
manner,
nothing
Ascen-
and therefore
relating
issues
would be
attempt
contributory- gained by
his
cion’s rescue
consideration of them.
negligence.
inquired as
the care
Each
is re-
of the trial court
ordinary prudent
exercised
an
versed and the cause remanded.
under the same or similar circumstances.
In
11 the
that As-
Issue No.
found
CADENA,
(dissenting).
Justice
care in
cención failed to exercise such
time
failing to
side in
move
at-
agree
I
cannot
avoid
hit
the taxicab.
Issue
from im-
a third
tempting to rescue
submitted,
conditionally
No.
by the
injured
danger and who is
minent
found,
effect,
wav-
of defendant should
negligent conduct
shouting
hands
an
at-
because,
the rescue
denied
to rescue the
of im-
tempt,
concern
he failed to show that
peril,
proper
minent
exercised
care im-
which,
safety
presumably, would
own
mediately
struck. Such
before
mythical
characterized the conduct of
findings have reference
his conduct on
ordinary prudence.
creature, the man of
the same
occasion and are
irreconcilable
flower
to fine
came
The rescue doctrine
Furthermore,
conflict.
Cardozo
language
Judge
leaping
the “judgment test” as set
in Little
forth
Co., 232
International
Wagner v.
Rock
Manufacturing
Furniture
A.L.R.
133 N.E.
N.Y.
Dunn, 148 Tex.
rejects that dark
That brilliant
(1949), demonstrates that said conflict is
insists
of human nature
dismal view
11, together
fatal. Under Issue
No.
interest in
legitimate
bystander
has
proximate
finding,
appellant
cause
imminently
those
attempting the rescue of
is entitled
a take-nothing judgment
imperiled.
based
hand,
Ascención.
under Is-
On
other
involv
One of the earliest
cases
*6
24,
sue No.
found
& A.
Antonio
situation is San
a rescue
ordinary prudent
exercised the care
424,
Gray,
67 S.W.
P.
v.
95 Tex.
Ry. Co.
person under
the same
similar circum-
light on
little
(1902).
763
sheds
stances and therefore was not contribu-
favor
problem,
jury’s
verdict
since
torily negligent.
charge
plaintiff
general
a
was based on
contributory
absence
which made the
Appellant urges
specific
But
recovery.
negligence prerequisite
a
finding
contributory negligence
plain
pointed
a
Supreme
out that
Court
general
proper
control
care.
danger for
exposing himself to
act of
tiff’s
exception
applicable here,
Such
is not
saving
life
another
purpose
general
proper
care
“lay
him liable to
not
necessarily
specific finding
included the
at 764.
contributory negligence.” 67 S.W.
situation,
negligence.
comparable
stronger
found in Mis
language
Much
is
pri
finding of
accident and
Goss,
unavoidable
31
souri,
Ry.
K. & T.
Co. of Texas v.
94,
mary negligence
uniformly
300,
(Tex.Civ.
Tex.Civ.App.
is
held
be
96
72 S.W.
“
1903,
per
App.,
ref’d) :
Dallas
writ
‘For
Arhelger,
a fatal conflict. Bradford v.
* * *
affairs,
engaged
son
in his
427,
161
Tex.
either
reckless.’
even
approval
position
to the
taken
engine
approach-
Goss knew that the
3;
American Law Institute
and
&
Swift Co.
ing,
did,
it is not clear that he
Baldwin,
157,
(Tex.Civ.
v.
299
161
S.W.2d
—and
—the
the
question as to whether
going
on
App.,
1957, writ),
Texarkana
where de
track
necessary,
rash or
was not
rely
contributory
fendant did
negli
not
reckless, considering the reason
his ac-
gence
contended, instead,
aas
defense but
* *
tion,
properly
jury,
left to the
plaintiff
had assumed the risk because
(Emphases added)
rashly
he
recklessly
acted
as a matter
law. Goolsbeev. Texas & N. O. R.
Similar dicta are
found
& N. O.
528,
150 Tex.
243
(1951),
S.W.2d 386
re
R. Co. v. Scarborough,
(Tex.
favor of the rescuer was McVey tal Hoyle value of that, discount- Appeals saying Civil Paso Court of ed, all question be said can is that the reck- rashly since had not acted say question However, indicate instruction Court did that, was to the effect the failure of time the of error was writ engineer give signal warning granted, inclined to believe should the Court was special regarded not be because third instruction” re- that “the McVey approach quested by knew of have been defendant if, given, train. See the discussion the Court defend- as claimed twenty- ant, appeared by of Civil uncontroverted defendant’s “it n * * assignment McVey fourth of error. 81 S.W. at evidence that Edward *8 Appeals held, approach 1001. The train Court Civil knew of defendant’s of the Supreme Court, push place as did the with the this to the of collision charge properly given. car,” charge refused because it should have been the McVey reading opin- assumed the fact knew the 329-830. A the approaching. conjec- train was If this con- ion of the Court of Civil nothing indicating ture as to the nature of defendant’s the substance of the tains requested instruction,” special special does instruction No. 3 is “the nor third correct, Supreme nothing any light Supreme there is in the on this Court cast question. language Court weaken comments Appeals concerning Court of Civil effect proper given applied the uncontro- standard been to he cases. established verted evidence approach the train would knew presented by this has not case been answer- cial mind comes to his defense with the byed the Texas Courts. rhetoric duty” of the “no doctrine. policy I believe that considerations sound But camouflage no amount of verbal can support the that the standard conclusion hide the fact that our man of not ordinary prudence should the man of prudence only will bestir himself when in- applied situa- bar a rescue penalized. action bewill Since our stand- very itself tion. The nature of standard ard of conduct is not it high, is not un- too against against rescuer. militates its use penalize reasonable to fall those who short of the standard. Our tolerance conduct Traditionally, legal literature discuss- which does no more than conform to ordinary prudence empha- the man of recognition minimum standard is but a qualities.5 many sizes his commendable frailty. human transgres- But to treat as a Nevertheless, falls this lifeless creature person who, occasion, sor the rises above person. an ideal somewhat short of this standard is indefensible. which, subject He frailties to those human while not commendable are not considered Heroism is not one of the attributes of judicial condemnation. sufficient cause ordinary prudence, pru- since safety trespassers is His concern for the dence, his cardinal virtue that he dictates almost but little more minimal. He shows not journey embark on a down the road to guests. interest welfare of his social heroism. it adopt is as should be. To Although display of his arranges the the hero as our standard would make tort- goods in a manner which and merchandise feasors of us all. The hero necessarily dis- hopes guest will induce not his business plays more concern for safety others through shop eyes to walk riveted and, correspondingly, attaches less value to floor, slips when the customer safety, his own than does man of ordi- ordinary prudence falls the man of will nary prudence. places Society the hero on whisper receptive judicial into a ear that the pedestal. law, incongruous It is for the dangerous condition of the floor was so should, degree, least some reflect open any plainly obvious fool could conscience, social to cast him into ex- law, see it. The recognizing common his terior inquire darkness. To whether one detachment and him- reluctance to involve who risks his life to save another acted as him, self in matters which do not affect does would a prudent whose nature would expect not him to come his aid of frown on such unselfish conduct tois ask a injured neighbor, even when he can do so meaningless question. exposing without danger. himself Of course, these attributes the man pronouncements of ordi- legislative nary prudence are seldom listed as charac- judicial branches of clearly this State
ter defects. his those situations where preference indicate a policy for a which de- quite conduct not praiseworthy, judi- that, mands when purpose of conduct is invariably 5. “He is who looks year’s where who never from one end an- going, he is and is careful to examine other upon makes excessive demand foreground wife, the immediate ex- neighbors, before he his servants, his * * * leap bound; ox, ass; ecutes or a who neither or his who never star-gazes gambles swears, nor is lost in meditation temper; when loses his approaching trapdoors margin nothing or the except moderation, who uses * * * dock; flogs who never mounts a and even while he his child is medi- * moving * * alight tating golden omnibus and on mean. any car while the train is motion In all that mass of authorities which * * * upon and will inform himself of the bears this branch of the law there history dog single habits before ad- is no mention of a reasonable wo- * * * ministering caress; Herbert, Misleading man.” *9 Cases Law, quoted never drives his ball until those in front (1930), Common 12-16 definitely put- Prosser, of him Ed., have vacated the Law of 3rd 154 n. objective; ting-green (1964). which is own 18
723 in- bodily of death or serious the avoidance ordinary jury, the standard of EPPS, Appellant, W. William Thus, where
prudence aside. be brushed v. person ato rendering assistance CO. BUILDERS DEVELOPMENT TEXAS abrogated distress, legislature our al., Appellees. et requires that law rule which common No. 7901. Samaritan, lia- avoid civil if is to Good aid, bility attempts whom he of Civil of Texas. State, inas ordinary care. In this exercise Texarkana. others,6 person who undertakes several 29, 1968. Oct. good faith emergency aid administer performed during the not liable for “acts Rehearing Nov. Denied wilfully emergency unless such acts wantonly Ann.Civ.St. negligent.” Vernon’s la.
Art. Texas, in
Again, Court of peril,” of “imminent
developing the doctrine that, threat where the sole
has held even actor, that his
to the life or limb spirit of altruism which
conduct lacks
prompts civilizing impulse to rescue
others, the of the man of standard
prudence applicable. situation, pru plaintiff acts whether
dently imprudently save in his & G.
himself irrelevant. International Neff, R. 87 Tex. 28 S.W.
N. Co. v. ; Watkins, 88
(1894) Ry. P. & v. 232 (1895);
Tex. Jackson Galveston, Ry. H. & A. Tex. S. Missouri, K. & T. (1897); S.W. 745 52, 40 Rogers, of Texas v.
Co. (1897) Browning, 129 Tex. Beck Thode, Imminent (1937); Texas, Emergency
Peril and 40 Tex.L. (1962).
Rev.
To hold that reckless or rash conduct preclude recovery by a from
will rescuer a dan- whose created judi-
gerous not shock situation should attempt has a rescue
cial conscience. While purpose shielding its of another
as
injury, it should remembered
rescuer, successful, have effec- will also
tively defendant from negligent shielded the Berry, Dallas, appellant. for Burt or, Hoyle, decreased liability will Goodstein, Dallas, appel- M. Barnett liability by the number reducing defendant’s injured. lees. persons killed or Note, Col.Law Rieview 816