48 S.W.2d 372 | Tex. App. | 1932
This suit was instituted by appellee Joe Jeter against the Wichita Palis Traction Company and Albert Liemkuehler to recover damages received in a collision with a street car operated by one of the regular employees of the company and an ambulance operated by Diemkuehler, one of the owners of a private funeral home.
The collision occurred at the intersection of Holliday and Thirteenth streets in Wichita Palls. Thirteenth street is a paved street extending east and west and is approximately 50 feet wide. Holliday street extends north and south and is approximately 100 feet wide with a parkway in the center approximately 40 feet wide, thus leaving an open paved driveway of approximately 30 feet on each side of the parkway.
In his first amended original petition, upon which the case was tried, plaintiff alleged that at the time of the collision the street car was proceeding westerly on Thirteenth street to its intersection with Holliday street; that the ambulance was going north on Holliday street and traveling a't a rate of speed in excess of 50 miles an hour; that it was driven violently into the side of the street car, knocking it more than 20 feet from the track. He alleged that the defendants were jointly negligent: The traction company for failure of its motorman (a) to look and listen as he drove into the intersection, and (b) to see the ambulance approaching; Albert Diemkuehler (a) in failing to keep a lookout, (b) in failing to have his ambulance under control, and (c) in failing to reduce the speed of his ambulance so as to avoid the collision.
Diemkuehler answered by a general demurrer, a general denial, and special defenses, alleging that the Wichita Palls Traction Company, hereinafter called company, was negligent on account of the failure of its motorman (a) to keep a proper lookout, (b) to see or hear the approaching ambulance and yield the right of way, and (c) to stop when he saw the ambulance coming; and that such acts were the sole proximate cause of the collision.
The company answered by general and special exceptions, a general denial, and special defenses, alleging that Diemkuehler committed acts of negligence which were the sole proximate cause of the collision, (a) in driving his ambulance at a reckless and dangerous rate of speed, (b) in failing to keep a proper lookout, (c) in failing to have his ambulance under control, (d) in failing to slow down or stop when he saw the street car in the intersection, (e) ‘in falling to go behind the street car or turn east on Thirteenth street, (f) in failing to yield the right of way to the street car, and (g) in failing to use the means he had at hand to avert the collision after discovering the peril of the street car and its occupants.
Each defendant, by demurrer and denial, answered the defensive allegations of his co¡defendant.
The company’s motion for new trial was overruled, to which exception was taken and notice of appeal duly given and appeal bond filed, payable to the plaintiff Jeter.
The court gave definitions of the terms “negligence,” “ordinary care,” “proximate cause,” “new and independent cause,” and, among others, submitted issues that evoked the following findings, to wit: (a) That the motorman operating the street car failed to look and listen as he drove his car into the intersection of Holliday and Thirteenth streets, and that such failure was a failure to use that degree of prudence which the street ear company owed the plaintiff, and that the failures found were a proximate cause of the injuries sustained by plaintiff, (b) That the motorman failed to see the ambulance as it approached the street car crossing at Hol-liday and Thirteenth streets; that such failure was a failure to use that degree of prudence which the street car company owed the plaintiff; and that the failure was the proximate cause of the injuries sustained by the plaintiff. (c) That Liemkuehler saw the street car entering the intersection of Holli-day and Thirteenth streets and continued to operate his ambulance without making an effort to reduce the speed, but that such action did not constitute negligence as defined in the charge.
Appellant made numerous objections to the court’s charge and requested a number of special issues that were refused, to which refusal error has been assigned; but in view of the conclusion we have reached, we do not think it necessary to discuss these assignments.
The vital questions presented arise under appellant’s first assignment of error, which goes to the action of the court in refusing its peremptory instruction to find in appellant’s favor. It was vital to appellee’s recovery against the appellant that he prove by a preponderance of the evidence that the motorman of the street car was guilty of negligence in failing to look and listen, and see and hear the approaching ambulance, and that such negligence was a proximate cause of the collision and plaintiff’s injuries.
We are of the opinion that the verdict of the jury, to the effect that Liemkuehler was without negligence in continuing to operate his ambulance without making an effort to reduce its speed after having seen the street car, is against the overwhelming weight of the testimony. We think it must be implied that such finding was brought about by a charge of the court to the effect that Liemkuehler in operating the speed of his ambulance was not subject to a speed ordinance of the city, which had been offered in evidence. It certainly will not do to say that an ordinance of a city exempting certain motor vehicles, including an ambulance on an emergency call, can authorize one using the city streets to consciously drive, or act, or fail to act, in a manner destructive to life, limb, or property. A mere exemption from the operation of speed laws cannot be legally construed as a license to operate a dangerous agency at cyclonic speed over public streets of a city, intersected by well-known streets and car lines and occupied by others, regardless of consequences to persons or property that may be likewise on the streets, whether such persons be on such streets rightfully or wrongfully. -In other words, while the ambulance was in answer to an emergency call, the driver was required at all events to exercise ordinary care, even a high degree of care, to avoid injury to persons who may be upon the streets.
Appellant sought by requested eharg-. es findings of the jury (a) whether or not Albert Liemkuehler was negligent in driving his ambulance at the rate of speed he was just before and at the time of the collision; (b) whether or not he was negligent in keeping a proper lookout for traffic at Holliday and Thirteenth streets at the time and place in question; (c) whether or not he was guilty of negligence in failing to reduce the speed of his ambulance; (d) whether or not he had his ambulance under control at the time and, if not, whether such failure constituted negligence as had been defined, and whether, in event of findings of negligence in these several particulars, such negligence was a proximate cause of the collision and injury. Appellant also by objection to the main charge and by specially requested instructions sought a finding of whether or not the negligence of Liemkuehler, if any found, was the sole proximate cause of the collision and resulting injury. We think these special instructions should have been given. Under the decision of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, and cases following it, a defendant has the right to have the submission in an affirmative form of every well-pleaded ultimate and basic fact which, if found in his favor, will constitute a defense,
In the case before us appellant pleaded, among other things, that the sole proximate
The question again arose in the case of Montrief & Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276. The ruling in that case is indicated by the following quotation from the headnotes: “In action for personal injuries against a gas company and a plumb-, ing firm, refusal of plumbing firm’s requested special issue whether negligence of gas company was the sole proximate cause of plaintiff’s injury, which issue such defendant was entitled, under the evidence, to have submitted, held reversible error, as against contention that the error, if any, was rendered harmless because jury specifically found that negligence of each defendant proximately contributed to injury.”
The latest expression of the principle involved that we find is in the opinion of Judge Leddy, of Section B of the Commission of Appeals, in the case of Dallas Ry. & Terminal Co. v. Garrison, 45 S.W.(2d) 183, 185. In that case it appears that the railway company had pleaded, among other things, that the collision was the result of an unavoidable accident. In disposing of an assignment of error complaining of the trial court’s failure to submit a requested charge presenting the issue, it was said: “It is asserted by defendant in error that, even if the issue of unavoidable accident is presented by the evidence, there was no error in refusing to submit the same, because the finding of the jury that both the motorman operating the street car and the driver of the automobile were guilty of negligence excludes the theory of inevitable accident. This court has often held that a defendant cannot be deprived upon any such ground of the affirmative submission of a defense properly pleaded and sustained by proof. Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276; Colorado & Southern Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908.”
In view of the criticisms made of other proceedings, the same questions may not arise upon another trial, and we will not therefore extend this opinion by formal disposition of the numerous other propositions of error urged, but finally conclude that our former opinions and judgment of affirmance should be withdrawn, appellant’s motion for rehearing granted, and the judgment below reversed and the cause remanded as to all parties for the reasons shown in our opinion this day filed. See Hamilton & Co. v. Prescott, 73 Tex. 565, 11 S. W. 548; Ferguson v. Dickinson (Tex. Civ. App.) 138 S. W. 221, and cases therein cited.