Southwestern Gas & Electric Co. v. Grant, 223 S.W. 544

Southwestern Gas & Electric Co. v. Grant

223 S.W. 544 | Tex. App. | 1920

The contention that the trial court erred when he refused to instruct the jury to find in appellant's favor is predicated on the claim that the testimony did not authorize a finding that the motorman was guilty of actionable negligence, or, if it did, required a finding that appellee also was guilty of negligence which, concurring with that of the motorman, was a proximate cause of the collision.

We think the jury not only had a right to say from testimony referred to in the statement above that the motorman was guilty of negligence in that he operated the car at a dangerous speed over the crossing at Fifth street, but also had a right to say he was guilty of negligence in that, having discovered that appellee, because of the street car, "was in a perilous position, or about to enter into such position" (Ry. Co. v. Finn, 101 Tex. 511, 109 S.W. 918), in time with means at his command to have stopped the *546 street car or so checked the speed thereof as to have avoided the collision which occurred, he made no effort whatever to do so.

Therefore, even if it appeared as a matter of law that appellee was guilty of contributory negligence, appellant's contention should be overruled; for negligence on the part of appellee in exposing his automobile to danger from a collision with the street car was not a reason why he should not recover on account of injury thereto as the result of a failure on the part of the motorman, after he discovered the danger, to use proper care to avoid the collision. 20 R.C.L. 138 et seq.

Notwithstanding what was said by the Court of Civil Appeals in Southern Traction Co. v. Wilson, 187 S.W. 536, we do not understand the rule recognized in other jurisdictions and invoked by appellant, which denies the applicability of the doctrine of "discovered peril" in a case where the "negligence of the plaintiff continued until the very moment of the injury," to be the law in this state. The decision in the Wilson Case was by a divided court. It is in conflict, it seems, with Ry. Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S.W. 1111 (in which a writ of error was denied by the Supreme Court), and other cases decided by courts in this state. It (the Wilson Case) is now pending undisposed of on a writ of error granted by the Supreme Court.

But if the rule invoked is the law in this state, we do not think this case on its facts is within it. It appeared without dispute in the testimony that appellee did all he could to get his automobile out of the way of the street car as soon as he discovered it.

Plainly, it was not error to refuse to permit the witness White to testify that he thought that at the time appellee and the motorman discovered each other "they were too close together for either one to stop"; and we do not think it was error to exclude the testimony (by deposition) of the motorman that the instant he saw the automobile he did everything he could have done to stop the car. There was testimony showing what the motorman could have done, and he testified as to what he did do in an effort he said he made to stop the street car and so avoid the collision. It was for the jury and not the witness to say whether he did all he could have done to stop the car or so check the speed thereof as to avoid hitting the automobile.

Assignments in appellant's brief not disposed of by what has been said are also overruled. So far as they point out error in the trial in the court below, the error was harmless if, as we have determined is the case, the findings on the issue of discovered peril were warranted by testimony.

The judgment is affirmed.