308 S.W.2d 63 | Tex. App. | 1957
This is a suit for damages for personal' injuries sustained by plaintiffs Cohen and wife, when a car in which they were passengers, operated by Ben Clark, was involved in a collision at the intersection of 25th and Q Streets, Galveston, Texas, with an automobile operated by defendant Mor-reale. On the basis of jury findings and an
Plaintiffs appeal, contending: 1) The Trial Court erred in refusing to submit special issues on discovered peril to the jury. 2) The verdict is against the great weight and preponderance of the evidence.
We revert to plaintiffs’ 1st contention, viz.: that the Trial Court erred in refusing to submit issues on discovered peril to the jury. Plaintiffs plead discovered peril and tendered properly drawn issues inquiring thereon. The Trial Court refused to submit same.
Plaintiffs sought issues .inquiring:
1) If immediately before the collision plaintiffs were in a position of peril.
2) If defendant discovered the perilous position of'plaintiffs, if any, prior to the collision and realized that in reasonable probability they would not extricate themselves from such perilous position, if any.
3) If the discovery and realization, if any, by the defendant of the perilous position, if any, of plaintiffs, was in time so that, by the exercise of ordinary care, defendant could have avoided the collision.
4) If, after discovery and realization, if any, of the perilous position of plaintiffs, defendant failed to-exercise ordinary care to avoid hitting plaintiffs.
5) If such failure, if found, was a proximate cause of the collision.
The quantum of proof required of the plaintiffs on these elements of discovered peril in order to entitle them to have same submitted to the jury was such facts and circumstances as, taken together, with all reasonable inferences therefrom, constituted some evidence of probative force of their existence. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W. 2d 561.
In determining whether the plaintiffs discharged this burden we must view and interpret the evidence in the record in its most favorable light to the plaintiffs, disregarding all evidence and the inferences therefrom favorable to the defendant. White v. White, 141 Tex. 328, 172 S.W.2d 295; Ford v. Panhandle & Santa Fe Ry. Co., supra.
It is the knowledge of defendant of the danger of injury, and not the certainty
“Realization” that plaintiffs would not extricate themselves is adequately shown by circumstances of visibility. A jury may believe a witness’ testimony in part while rejecting it in part. Creech v. Thompson, Tex., 297 S.W.2d 817.
To raise the issue of discovered peril it is not necessary that actual discovery of perilous position of injured party be proven by positive evidence, and it is sufficient if facts, reasonably construed, show that the party charged under all the evidence should have discovered the perilous position of the injured party. If the evidence raises the question as to whether the party charged should have, under all the evidence, discovered the perilous position, then the question as to the fact as to whether he actually discovered it is for the jury, since the credibility of all the witnesses, especially the parties, is for the jury. Long v. Surls, Tex.Civ.App., 275 S.W.2d 728.
In determining whether or not the Trial Court erred in refusing to submit the issues of discovered peril — as our Supreme Court said in Creech v. Thompson, supra: [297 S.W.2d 819]
“Our actual problem is largely one of permissible reasoning on the part of the jury by way of inference from circumstances in evidence and reliance on part of the testimony while disregarding contrary parts of it. In keeping with the familiar rule for testing a verdict for ‘no evidence’, we accept the evidence and permissible inferences therefrom most favorable to the verdict * * * ”
In the case at bar we think that since defendant saw plaintiffs when they were 330 feet from the intersection, and plaintiffs were entering the intersection, the jury could have concluded that plaintiffs were in a perilous position. The jury could have further reasoned that defendant realized that in reasonable probability plaintiffs would not extricate themselves from such position of peril. The fact that defendant claimed he suspected plaintiffs would be extricated from their peril by their driver stopping before the collision is not enough. It is sufficient that defendant knows the person injured was in a place of danger from which he probably could not or would not extricate himself in time. Moreover, the jury could believe that realization occurred a few seconds before defendant saw plaintiffs the second time but that he braked his car later than he said he did. The fact that plaintiffs had only approximately 15 feet to go to a position of safety would justify the conclusion that if defendant saw plaintiffs and realized their perilous position but reacted to avert collision a few seconds later than he testified; that there was time to have saved plaintiffs by applying the brakes and veering right at the earlier point where their peril was realized. A split second sooner on applying the brakes or sounding his horn could have been the margin that was needed for plaintiffs’ safety.
It follows that we believe the Trial Court should have submitted the issues on discovered peril.
Plaintiffs’ second contention is that the verdict of the jury is against the weight and preponderance of the evidence. Without detailing the evidence, we sustain this point, but make no comment thereon because the cause will have to be retried.
The judgment of the Trial Court is Reversed and the cause Remanded for further proceedings not inconsistent with the views expressed herein.