13 S.W.2d 450 | Tex. App. | 1929
This suit was instituted by appellant, L. F. Shaver, against appellee, Victor Mason, to recover damages suffered by appellant as the result of being struck by appellee's Ford car at the intersection of two streets in the city of Dallas. Appellant alleged that said accident was the direct result of negligence on the part of appellee. Appellee denied appellant's allegations, pleaded affirmatively the exercise of due care on his part, contributory negligence on the part of appellant, and inevitable accident.
There was a trial by jury on special issues. The following issues and answers thereto control the disposition of this appeal:
"(7) Did Victor Mason fail to drive on the right hand side of Harwood street while traveling south thereon at the time of the collision? Answer: Yes.
"(8) Did such failure, if any, of the defendant Victor Mason to drive on the right hand side of Harwood street traveling south thereon, proximately cause the injuries in question? Answer: Yes.
"(9) Was the plaintiff guilty of contributory negligence in failing to keep a proper lookout for his own safety at the time and place in question? Answer: Yes.
"(10) Was the plaintiff guilty of contributory negligence in crossing the street at the time of the collision, if any without looking in both directions to see whether or not defendant's car was coming? Answer: Yes.
"(11) Was plaintiff guilty of contributory negligence in failing to use due care and attention to the place where he was going at the time and place of the collision? Answer: Yes."
The jury, in addition to the above findings, further found that appellee's injuries were not the result of an inevitable accident, and that he suffered damages in the sum of $350. All the other issues submitted involved acts of negligence charged against appellee. Negative answers thereto render consideration of the same immaterial. The court rendered judgment for appellee.
Appellee contends the answers of the jury to issues (7) and (8) as above recited do not authorize recovery by appellant; that no other judgment except one in appellee's favor could have been rendered, and that, therefore, errors in submitting issues of contributory negligence were harmless and do not justify a reversal of the judgment. This contention is based on the absence of a finding by the jury that the action of appellee in driving south on the left-hand side of Harwood street constituted negligence. Appellant pleaded and proved that ordinances of the city of Dallas require drivers of vehicles traveling its streets to keep as near as practicable to the right-hand curb, and, on turning to the left, to pass around the center of the street intersection. Appellant testified that he was struck about three feet from the left-hand curb of Harwood street. According to his testimony, appellee, instead of traveling south on said street as near as practicable to the right-hand curb, was in fact traveling along the left-hand side thereof, within three feet of the left-hand curb. The jury found that appellee was not traveling on the right-hand side of said street. He was therefore necessarily traveling on the left-hand side thereof, and, in doing so, violating the ordinances of said city. The jury found that such violation was the proximate cause of appellant's injuries. Where an act prohibited by statute or ordinance is the proximate cause of injury to a person, as in this case, it constitutes actionable negligence as a matter of law. Waterman Lumber Co. v. Beatty,
Appellant complains of the action of the court in submitting to the jury for determination the issue of inevitable accident. We have reviewed the evidence, and, without reciting the same, hold that such issue was raised thereby. Suttle v. Texas Electric Ry. (Tex.Civ.App.)
None of the other matters complained of will necessarily occur upon another trial. The judgment of the trial court is reversed, and the cause is remanded.