116 S.W.2d 870 | Tex. App. | 1938
About midnight of June 12, 1933, on a paved highway in Montgomery county, appellee, Miss Fay West, drove her Chevrolet roadster into the back end of a truck owned and operated by appellants, Joe and Ben Coleman. This suit was filed by appellee against appellants for damages for the personal injuries suffered by her in the collision. The jury found that appellants were guilty of negligence in driving the truck on the highway at night without lights, and acquitted them of all other acts of negligence pleaded against them. Appellee was acquitted of contributory negligence, and the jury found against appellants on the issue of "unavoidable accident." Appellee's damages were assessed at the sum of $4,425, and on the verdict of the jury judgment was entered in her favor against appellants for that sum. Appellants have duly prosecuted their appeal to this court.
The court submitted the following definition of "new and independent cause": "Such a cause as interrupts the natural sequence of events, turns aside their course and prevents the natural and probable result of the original act or omission and produces a different result that could have been reasonably foreseen or anticipated in the light of the attending circumstances by a person of ordinary prudence in the exercise of ordinary care." This definition should have read, "a different result that could not have been reasonably foreseen or anticipated," etc. The omission of the word "not" was called to the court's attention by a proper exception. The charge was fatally defective, Clements v. Wright, Tex. Civ. App.
The following issues of contributory negligence were raised by the evidence, and on appellants' request should have been submitted to the jury: (a) Whether or not, at the very moment of the collision, appellee was driving her car at more than 45 miles per hour; (b) whether or not she actually discovered the truck in time in the exercise of ordinary care to avoid striking it; and (c) whether or not in the exercise of ordinary care she should have discovered the truck in time to avoid striking it.
We suggest that, on another trial, the court give the definition of "unavoidable accident" approved by the Supreme Court in Southern Ice Utilities Co. v. Richardson,
The judgment of the lower court is reversed and the cause remanded for a new trial.
Reversed and remanded. *872