19 S.W.2d 94 | Tex. App. | 1929
On the 9th day of January, 1925, while crossing Magnolia avenue at the intersection of Calder avenue, in the city of Beaumont, appellee was struck and seriously injured by a Ford truck. This suit was brought by her against appellant for the resultant damages. She alleged that the truck was owned by appellant; that it was being operated by one of its servants in the due discharge of his duties to appellant; that the servant was negligent in operating the truck; and that such negligence was the proximate cause of her damages. She specially pleaded her grounds of negligence as follows: "The defendant, operating a truck in charge of its employee and servant one M. F. Scott, was driving said truck in a southerly direction on said Magnolia Avenue at a great rate of speed, to wit; in excess of approximately thirty (30) miles an hour; and in the operation of said truck, which was propelled by gasoline motor power, the defendant, through its servant aforesaid, was wholly reckless of the rights of the plaintiff and of all other pedestrians similarly situated with plaintiff."
It is necessary to mention only appellant's general denial. The trial was to the court without a jury and resulted in a judgment in appellee's favor for $1,400. Appellant seeks for reversal of the case on the following grounds:
(a) There was no evidence that it owned the truck in question.
(b) There was no evidence that the driver of the truck was its servant or in discharge of any duty of his employment at the time of the accident.
These points will be considered together. The following was all the evidence on this issue: "That was a Ford truck. It was a truck, enclosed truck, with the Globe Laundry insignia on it. I didn't know the name of the man driving that truck. I might — I couldn't say that I knew the man's name; I knew his *95 face, but I don't — I don't know if I would recognize him here in the court room or not. I see so many folks driving trucks that I couldn't say. I know it was a Globe Laundry truck."
Appellant says the statement, "I know it was a Globe Laundry truck," was a mere conclusion of the witness drawn from the fact that "the Globe Laundry insignia" was painted on the truck. We agree with this construction of this phase of the testimony. The witness was not testifying to the ownership of the truck from his independent knowledge, but only from the fact that appellant's name was printed on the truck. That was all the evidence before the witness. But the testimony quoted, uncontradicted and unexplained by appellant — and appellant offered no testimony — was sufficient to raise the inference that appellant owned the truck and that it was being operated by one of its servants in the ordinary discharge of the duties of his employment. Howell v. Mandelbaum,
In Edgeworth v. Wood, it was said: "All the witnesses who saw the accident and noticed the wagon which ran over plaintiff unite in declaring that it was painted as were the wagons of the company, and that it was marked with the company's name and device. Considering the great improbability that any other owner of a wagon would thus paint and mark it, a plain inference could be drawn from the evidence that the wagon in question was in the ownership of the company. If that inference be drawn, it is sufficient to establish prima facie that the wagon, being owned by the company, was in its possession, and that whoever was driving it was doing so for the company."
(c) Appellant says there was no evidence that the speed at which the truck was being operated was negligence, in that it was the proximate cause of the accident.
Appellee pleaded only one ground of negligence, to wit, "a great rate of speed," which was "wholly reckless of the rights of the plaintiff and all other pedestrians similarly situated with plaintiff." All the evidence on this issue was circumstantial. No one saw the truck before it struck appellee. The street at this crossing was not being used by any other persons at the time of the accident. The accident occurred about 6 p. m. The street was well lighted by electric lights hanging in the street and also by lights from a drug store at the northwest corner of this crossing. It was misting rain. The street car company maintained a traffic director at this point. Ordinarily this crossing was a busy corner, one of the busiest in that section of town. A street car track was in the center of Magnolia avenue, and another track was in the center of Calder avenue, crossing each other at right angles. In crossing Magnolia avenue, appellee was on the south side of Calder, walking west, and was struck when she was about two-thirds or three-fourths of the way across Magnolia avenue. The truck was going south on the west side of Magnolia avenue. After striking appellee the truck dragged her body about 20 or 25 feet, and, when it was stopped, appellee's body, except her head and shoulders, was under the truck between the front wheels, her head and shoulders protruding beyond the front end of the car. She was rendered unconscious by the collision, her body was badly bruised, and her clothes destroyed. The servant of the street car company above referred to, whose duty it was to supervise the movement of the street cars, and who witnessed the accident just as the truck came to a stop, and who was the first person to reach the truck, testified as follows: "As to whether I heard the driver of the truck say anything at the time, the driver of the truck said something; I am not positive of the exact words that he said, but I think that he said he couldn't see on account of the weather, the water being on the windshield. I wouldn't be positive, but he said something about not being able to see very well."
Appellee is entitled to every inference of negligence deducible from the facts in evidence. However, this rule requires that facts and circumstances must be in evidence from which negligence can be deduced. Where the accident does not ordinarily occur when proper care is used, and results from events or circumstances under the control of the defendant, and defendant offers no evidence explaining the accident, the mere fact that it happened may afford a basis for deducing negligence. Texas Pacific Coal Co. v. Kowsikowsiki,
In support of our construction of the circumstances enumerated, we think the res gestæ statement of the truck driver fully explains the cause of the accident as being the failure on his part to keep a proper lookout, excluding any inference that the speed of the car was a contributing cause. "He said he couldn't see on account of the weather, the water being on the windshield." This evidence affords a satisfactory explanation of the accident. The truck was being driven under conditions that prevented the driver from seeing appellee, in view of the care he was exercising at that time. Based on this statement, aided by the other circumstances in the record, negligence in operating the car without keeping a proper lookout was deducible. But this was not appellee's case. She did not plead this ground of negligence, and, therefore, the fact that the evidence raised it in her favor cannot support her judgment.
It follows that the judgment of the trial court must be reversed, and the cause remanded for a new trial.