*1 Griffith, rеspondent brief which has checked with record, supporting the answers of the the truck that crew suddenly jerked permitted caused the reel to be Halliburton and immediately accident, the winch line to be slack before the they respondent that failed to line warn that the truck winch negligence slack. Each these acts of found to proximate injuries. of the not examined rec- We have this ord supporting to determine whether there was evidence any special issues, of the answers the reason judgment upon any grounds that can rest one sub- mitted. The the statement of is in condition facts such because of the reference of the use witnesses to model describing of the words “this” and “that” in the accident toas make it difficult describe how the accident occurred is no ground negli- the conclusion there was no evidence gence. them, The court had the model testimоny doubtless meant much to them than it does say nothing them, to us. We cannot it meant or that support did not lend to the answers above mentioned. holding
We concur of the Court Civil refusing the trial court jury committed no error to submit to requested by petitioners. fairly The court controlling pleadings submitted the issues raised evi- and. dence, requested special only and the issues related to various 279, shades of the issues submitted. Rule Rules of Texas Civil Procedure, applicable. Court is affirmed.
Opinion 5,May delivered 1954.
Rehearing 9, overruled June 1954. Baggage Company
B. N. Mason
v. Yellow
Cab and
May 19,
No. A-4551. Decided
1954.
Rehearing
overruled June
1954.
(269
329)
Series
*2
Adkins, Folley, Adkins,
Fitzjarrald,
Merchant &
McConnel
Hankins,
Amarillo,
petitioner.
&
Hankins and A. B.
all of
holding
The Court of
erred in
that the submis-
Civil
enquiring
sion of the issue
not defendant’s driver
entering
failed to
was an instruction
the intersеction
jury which,
law, improperly
as matter of
influenced
plaintiff.
to answer other
in favor of
Coca Cola
issues
Bottling
669;
Ry.
Krueger,
v.
Dallas
& Term.
Co.
239
2d
S.W.
Pope
Jackson,
Orr,
862;
v.
147
v.
Co.
Texas
215 S.W.
Culton, White, Morgan, White, Ama- Britain & L. A. all of rillo, respondent. Appeals correctly
The Court of the evidence Civil held imposition failed as a on the matter of law show stop, driver of the cab and that the submission of 346
issue influenced the respecting consideration of issues speed, lookout, control application City of the brakes. Woolridgе, 641; Houston v. Ry. S.W. 2d Louisiana & A. Co. Chapin, ; v. Smith, 2d 614 S.W. 175 S.W. 2d 407. Collins v. opinion Garwood delivered the Mr. Justice Court. Concluding„that the submission the trial court to the particular group of a improper inwas effect an weight regards comment on the evidene as Court of awarding has reversed a damages petitioner, Mason, to our plaintiff below, who was being remanded for another trial. 266 grew The suit out a street City intersection collision in the *3 of Amarillo petitioner-plаintiff between the automobile of the going thoroughfare “through north on Street) a (Polk street” respondent and a (defendant motor cab of the below) Yellow Baggage Company, Inc., going Cab & privileged west on a less (34th Avеnue). street novelty sign undoubtedly The the stop of situation is that the intersection,
at originally the placed which was so as to have stop along thoroughfare, warned the cab driver to for the which petitioner-plaintiff thе car of how, approaching, the was had some- prior accident, degrees and to the been turned about 90 face, eastwardly oncoming cab, as to not toward the but south- wardly thoroughfare oncoming down the toward the car the of petitioner-plaintiff. group (alleged first of The issues of im- source the
proper comment) enquired whether the driver “failed to cab stop entering intersection,” failure, the and whether such any, negligence proximate was a and of collision. In cause the group, favorably addition to this which was answered petitioner-plaintiff, similarly there were also submitted and an- groups respectively swered four additional enquiring three-issue as to negligence of the conduct the cab driver and its character as causal following respects: ap- in the (b) “as failure he ** * proached intersection, keep proper the street a lookout approaching for vehicles intersection on Polk said from the south (as was) petitioner-plaintiff ; (c) Street” the car of the failure driving degree “to maintain over the con- vehicle he was such of trol person ordinary as would have been of care maintained * * prudence *”; greater (d) “driving speed aat rate of than person ordinary prudence driven care have ** approached thе apply as he his brakes *”; (e) “to failure occurred.” place collision where the urged successfully appel- as defendant which the The thesis urges again re- here as Appeals the Court
lant in group issues (1) first spondent is: abovementioned that, driver that, cab implied instructed and thus although intersection, no such he had stop for the had facing him; sign stop not duty, admittedly since to, and related “was so (2) improper admonition to the this dependent above) (items (b)-(e) “were so the other issues” give obligation jury did not that the upon, the assumed connection to the issues under the evidence.” fair consideration sign, perhaps should position it the matter of among submittеd, issues trial court also noted that be negligence, 7(a), enquiring bearing contributory on No. position so to face sign as “had turned from its normal south,” and approaching from on Polk
toward traffic Street position “the Spеcial to whether also submitted Issue No. as ** * sign question time turned at the which ** proximate Thus was not the collision sole said, charge hardly and in light it a whole can as contended, of the first even the submission facing eastwardly sign group of inferred the to have been southwardly it was. should rather than as have been is, object point respondent-defendant made course, merely group *4 escape of first of of not to the effect the through but, (b) findings, groups importantly, the effect of (e) abovementioned, a each valid which would otherwise be separate ground recovery sustaining court trial of the petitioner-plaintiff. taken when the adhere to the view We granted error, we writ of of Civil the the Court sustaining point question. erred in in the had, Assuming, assume, we cab under shall that the driver him, evidence, sign facing duty the the not no to when assuming group and thus above- also that the first of issues charge, we mentioned yеt the must should have been omitted from imply respondent- (a) that the admonition or instruction the imply say implied (b) defendant instruction would that this Evidently findings negligence? primary vitiates the additional may, as particular of an true that a issue because sumption, terms apparent assumption, or in involved the implied in comment propounds question, which it a an constitute recovery theory or or respect instruction either with to the 348 regard
defense wherewith same issue is concerned or subject to which the theories are matter of other issues. obviously improper, example, It is submit, to “Did de keep just preceding a fendant lookout the collision in which the plaintiff bаck?”, suffered his broken when a there is serious question on the plaintiff evidence as to whether the had an in jured Employers’ back. See Texas Insurance Mc Association v. Kay, 147; City 146 Texas S.W. of Houston v. Wool ridge (Tex. App. n.r.e.) Civ. wr. оf er. ref. decision, McKay type
But as indicated issue always reversal, mentioned does not entail a since under the cir particular including charge case, cumstances of the aas whole, may the force of the comment be so weak the latter is may either not a comment at all or be said to harmless. McKay case, alleged comment consisted of a reference to plaintiffs’ (without “injury” phrase, qualifying “if usual any”) a regarding defensive issue effect of disease on his alleged disability, being injury ques of an itself in existence subject tion and the matter issues. of other charge, In the instant the existence or in the comment question speculative struсtion more inferential or than in charges type McKay City or issues of the considered in cases, supra. judge many Houston did here not refer duty stop. enquired words to cab He driver to stop, any, failure, failed driver to whether such negligence. enquiry causal For the to convert this into an duty requires instruction that the driver owed some thing of the is also academic mind. The latter observation true process whereby as to apply the further mental should the instruction —once inferred —to so as to rea son, respondent-defendant do, that, as the since have it stop, the driver owed a did he thus also necessarily keep lookout, proper failed have his car under control, speed apply drive at a reasonable brakes. This his reasoning theoretical, line of becomes still more when we con infer, duty, sider scarcely jurors are could which the said offending one, be in their minds an absolute since the merely jury, you issues in effect “Do asked the think driver *5 stopped?” enquiry should have That would affect the such an jurors considerably in their to answers the other issues seems likely had, said, judge example, less than if the “I instruct for you stopped.” that the driver should If the had have been might inferences, to spec sensitive it not well its as have carried step itself, “But, one judge ulations further and said to intersec- duty for to driver owed the cab dоes think to was failure say whether his us to tion, why he ask did questions additional all those why ask us he negligence, did and brakes?” lookout, speed, control about way, is the connection looking another Nor, the matter at submitted other matters duty to between alleged had instruction if the necessary Even any one. means a might answered well have express positive, the considering of a did, the matter it without the other issues as facts example, vary instant should, for duty stop. If we to racing with another that the driver as to include evidence arms, are some drivers driving in his female car answering the jury in do, likely not even is wont lookout, control, speed and brakes issues as to additional an instruction rather than to mentioned look the evidence stop? the driver had theory of respondent’s brief, opinion our fanciful, yet too charge, is while far from
harmful error in the compli already Especially justify theoretical a reversal. too hard cated field like we cannot strain sys perfection damage to the whole without ultimate is, moreover, in line with tem in civil cases. Our conclusion policy of harmless in the domain our rеcent decisions error, Hering, Light 148 Texas such at Texas Power v. & Co. 350, 224 judgment reversed Court of Civil that of the trial court is affirmed.
Opinion May 19, delivered 1954. rehearing
on opinion Mr. Justice delivered of the Court. Garwood rehearing The motion invites our attention to the reversing Appeals, that appeal the Court of Civil cause on the defendant-respondent, pretermitted disposition assignment that the remittitur exacted the trial court inadequate to cure accord- the excessiveness of verdict. We ingly affirming portion judg- revoke that of our ment hereby trial court and remand cause to the Court proceedings of Civil for further inconsistent with opinion. Otherwise, our rehearing main the motion for is over- ruled.
Opinion delivered June 1954.