32 S.W.2d 940 | Tex. App. | 1929
This appeal is from a judgment against appellant awarding the appellee $174, entered upon a jury's verdict in response to special issues, as for damages caused by the negligent backing of one of its trucks into his automobile on Heights boulevard in the city of Houston.
The lumber company had answered by demurrer, denial, and plea of contributory negligence, all in general terms.
The appellee's petition specially alleged that the truck had, from the side, backed out suddenly at an excessive rate of speed into the boulevard, and struck his car, inflicting the damage for which he sought recovery.
The issues submitted inquired: First, whether appellant was negligent in the manner in which it backed its truck out into the *941 highway, and, if so, was that negligence the proximate cause of the collision, which were both answered in the affirmative; second, at what rate of speed was the appellee operating his automobile along the highway at the time, and whether such operation was negligence, if so, was it the proximate cause of the collision, which the jury answered by fixing 22 miles per hour as the rate of speed, saying that was not negligence, and leaving unanswered the proximate cause feature; third, what were reasonable market values of appellee's automobile immediately before and after the collision, which were answered by fixing the amounts of $700 and $550, respectively; fourth, how many days was it necessary for the appellee to hire an automobile to replace the use of his own, the answer to which was "4 days."
Our Penal Code, article 789, prohibits the operation of a motor vehicle within the corporate limits of an incorporated city like Houston at a greater rate of speed than 20 miles per hour; hence the jury's finding that the appellee was in such circumstances operating his automobile along this boulevard at 22 miles constituted negligence per se as a matter of law, rendering wholly abortive its attempted further finding to the contrary, Southern Traction Co. v. Jones (Tex.Civ.App.)
This error in the charge was duly called to the court's attention in requested special issues, the suggestions in which would at least have furnished the basis for an appropriate correction, but they were all refused; this action constituted reversible error, since appellant was entitled under well-settled authority, to have submitted the group of facts relied on by it under its pleadings and the evidence to constitute contributory negligence on the part of the appellee. Fox v. Dallas Hotel Co.,
The matters complained of under the other assignments are not likely to recur upon another trial, so need not be passed on further than to say that we think the special issues should be restricted to the special acts of negligence alleged and proven, whether upon the one side or the other. Fox v. Dallas Hotel Co.; supra.
The judgment has been reversed, and the cause remanded.
Reversed and remanded.