Opinion
No. 4277.
November 23, 1932. Rehearing Denied December 1, 1932.
Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
Action by Eugene Galvan and another against the Dixie Motor Coach Corporation and another. Judgment for plaintiff, and defendant named appeals.
Affirmed.
The action was by the father and the mother of Albert Galvan against the Dixie Motor Coach Corporation and Holly Taylor, jointly and severally, for damages for the alleged wrongful death of their son, Albert Galvan, occurring on the public highway about 5:30 o'clock p. m., of February 27th.
The petition of the plaintiffs alleged, in effect, that the nonobservance of the law by each operator of the motor vehicles at the same time and place combined in causing the death of Albert Galvan. The alleged conduct, besides others, was that, knowing Albert Galvan, a pedestrian, was using the highway, the operator of each motor vehicle operated his motor vehicle at a higher and greater rate of speed than 15 miles per hour in passing, and attempting to pass, each other in opposite directions, and the passing vehicle driven by Holly Taylor was caused to be "crowded and pushed off the said highway toward the south and caused to strike and kill the said Galvan," because the operator of the bus operated it down the center of the traveled portion of the highway without giving the other vehicle, which was proceeding in the opposite direction, one-half the road as nearly as possible.
The defendant the Dixie Motor Coach Corporation specially pleaded contributory negligence of Albert Galvan, and the injury was an unavoidable accident. The defendant further pleaded, namely: "Further answering, this defendant says that on the occasion set forth in plaintiff's petition if its bus did pass the deceased, which is not admitted but specially denied, it then says that such passing had been wholly and fully effected and completed long prior to the time that said bus met and passed the automobile being driven by its co-defendant, Holly Taylor, if, in fact, it did so meet and pass him; that in fact the two incidents were wholly separated and disconnected and occurred approximately one half a mile apart on said highway. * * * It further says that in effecting such passage no portion of its bus came in contact with Holly Taylor's automobile or the deceased, and that at all times immediately before and during said passage there remained to the left of said bus 12 feet or more on the traveled portion of the road before reaching the shoulder thereof, and more than sufficient space remained for the said Holly Taylor to effect his passage without leaving or driving his automobile upon anything other than the traveled portion of the said road. * * * It further says that on said occasion at the time of and immediately prior to the injuries of Albert Galvan its co-defendant, Holly Taylor, was guilty of negligence in many particulars that was the sole proximate cause of the injuries to and death of Albert Galvan."
The above were all the acts and particulars charged in the answer to have been done by Holly Taylor which solely caused the injury.
The highway in evidence is state highway No. 1. At the place in evidence it runs in an east to west direction. The place of injury was about five miles from Mt. Pleasant. The roadway at the locality of injury was "twenty-two feet from crown to crown." There was asphalt covering on the traveled portion for the width of fourteen feet. The shoulder or crown on each side of the asphalt was 4 feet wide, consisting of dirt and some gravel. At the time of the injury, the crew of the state highway department had been scraping and cleaning out the ditches on each side of the highway, and the dirt, consisting mostly of red clay, had been hauled and scattered upon the shoulder or crown of the roadway. A rain had just fallen, and the clay on the shoulders had become soft and muddy, and the asphalt on each edge was covered with such mud for the width of "about two-and-a-half feet." Albert Galvan and a companion were upon the highway walking along the shoulder or crown on the south adjoining the asphalt going in an easterly direction to the store of Mr. Whit Hargrove. At a point about three-quarters of a mile from the store, Albert Galvan was struck and fatally injured by a passing automobile going in the same easterly direction, and which was being driven upon the highway at the time by Holly Taylor. At the time he was struck, Albert Galvan was, as shown by the plaintiff's evidence, standing still, watching the approaching passenger bus of the Dixie Motor Coach Corporation being operated upon the highway going in the westerly direction. He was standing "about four feet south of the edge of the asphalt," and next to the ditch adjoining the south shoulder or crown of the roadbed.
The evidence is without conflict that the car driven by Mr. Taylor struck and killed Albert Galvan. The evidence is conflicting as to the acts and connection therewith of the two defendants sought to be charged with the death. The affirmative evidence and circumstances in behalf of the plaintiff goes to show that the bus was going down grade at the speed of "thirty miles or a little more" per hour. That Mr. Taylor was going up grade "about forty or forty-five miles per hour." That the road sloped down grade for more than 175 yards from east to west before reaching and after passing the point of injury. That the roadway was muddy and slippery. That the two motor vehicles met and passed each other in opposite directions at the point nearly and not far from opposite from where Albert Galvan and his companion were at the time standing. That such vehicles were being driven, respectively, at the time at the rate of speed above 30 miles an hour, and neither operator slowed down his speed to 15 miles or less, either while passing or attempting to pass each other. That during the time, and just before passing each other, the bus was occupying a part of the center of the roadbed. The wheels of the bus on the north side, going west, were something like 4 feet north of the center of the roadway. The bus was 6 feet wide. That at the time of the passing of the two vehicles there was only "about ten feet" of the asphalt that "was visible and wasn't covered up with dirt," or the mud mentioned. That Holly Taylor, in passing the bus, drove his vehicle, which was 5 feet and 6 inches wide, on the right side of the road, using partly the asphalt and mostly the shoulder or crown of the roadbed. That while so passing the bus the car of Mr. Taylor struck and killed Albert Galvan while he was standing still on the shoulder of the road.
The affirmative evidence and the circumstances in behalf of the defendants go to show, substantially, that Mr. Holly Taylor passed the bus about 100 yards before he reached or passed the point of the road near where Albert Galvan was standing. That, when the car of Mr. Taylor struck Albert Galvan, the bus was more than 150 yards west of the point where the boy was struck. The driver of the bus denied being at or near the place where the boy was struck at the time he was struck by the car of Mr. Taylor. That he did not know about the injury until afterwards, when he reached Sulphur Springs.
The case was tried before a jury, and they made answers to special issues. The answers of the jury, as material to state, in substance, are that: (1) the driver of the bus in passing the car operated by Holly Taylor failed to slow down the speed of the bus to 15 miles an hour, and Holly Taylor, in passing the bus, failed to slow down the speed of his car to 15 miles an hour, and (2) that the driver of the bus in meeting Holly Taylor failed to give Holly Taylor one-half the road as nearly as possible, and (3) that the failure to perform the several acts was the proximate cause of the injury complained of. The jury further found that Albert Galvan was not negligent in walking and being on the side of the highway at the time and place of his injury, and that the injury was not the result of an unavoidable accident. The jury found damages in the amount of $6,150.
The appellant requested, and the court refused to give, certain special issues, and the ruling is complained of in assignments of error 1 to 5, inclusive. The requested issues 1, 2, and 5, respectively, asked a finding upon the performance or not by Holly Taylor of the acts specified of whether or not the failure of performance of such specified acts "was the sole proximate cause of the injuries," namely: (1) "failure to slow down his speed to within fifteen miles per hour in passing the bus"; (2) "failure to keep a lookout for persons using the highway at the time and on the occasion complained of"; and (5) failure to apply the brakes "immediately prior to striking Albert Galvan." Issues 3 and 4 asked a finding by the jury of negligence vel non "solely causing the injury" in the following particulars: (3) In the rate of speed Holly Taylor was driving his car "immediately prior to the injury," and (4) in Holly Taylor "immediately prior to the striking of Albert Galvan driving his automobile with the wheels thereof on the dirt shoulder of the asphalt portion of the highway."
In keeping with the verdict of the jury, the court entered judgment for the plaintiff against both the defendants, jointly and severally. There is evidence to support the findings of the jury, and they are here approved and adopted as the facts proven.
Leachman Gardere, of Dallas, and Hiram G. Brown, of Mt. Pleasant, for appellant.
Williams Williams, of Mt. Pleasant, for appellees.
The appellant submits the following proposition, based upon the assignments of error and pleading stated, namely: "Where defendant pleads the negligence of its co-defendant as the sole proximate cause of the accident and injuries made a basis of a cause of action, it is error for the court to refuse special issues requested by the defendant on sole proximate cause which were duly and timely requested and which were supported by both the pleadings and the evidence."
Fault may not be found in the proposition that ordinarily one person is not liable for an injury which is the result solely of the negligence of another person who does not stand in such a relation to the former as to render the doctrine of respondeat superior applicable. He may excuse himself by showing that the injury was due solely to the separate and independent fault or act of another person. The applicant, though, it is believed, in attacking the ruling of the court, is confronted with the limitation that the special issues requested and refused are not applicable nor available to defeat liability of the appellant, in view of the special circumstances of the case and the theory upon which the case was pleaded and tried. The answer of the appellant pleaded, and the defense was offered and presented upon the theory, first, that at the time Albert Galvan was struck and killed by the automobile driven by Holly Taylor the two motor vehicles, the bus of appellant and the automobile of Holly Taylor, were "approximately one half mile apart on the highway." Assuming for the moment that theory of the case was the condition existing, then and in that state of fact, the liability of the appellant would not be in anywise legally existing, although Holly Taylor may have been at fault or negligent at the time his automobile struck and killed Albert Galvan, in the several particulars as stated in the requested special charges. The several particulars as stated in the several requested special charges were: (1) The rate of speed; (2) failure to keep a lookout; (3) failure to timely apply brakes; or (4) traveling too far on the right and off the traveled portion of the road. The several particulars, if existing in fact, would be entirely immaterial so far as casting or defeating liability of appellant. And, considering the answer further, the appellant pleaded, in defense of the theory urged by the plaintiff, the death of Albert Galvan was solely caused by the act and fault of Holly Taylor in the following particular: In passing the bus Holly Taylor drove his automobile on the shoulder and too far off the traveled portion of the road when there was no need of "driving his automobile upon anything other than the traveled portion of the said road." This was the sole particular act charged in the answer to have been done by Holly Taylor independent of any action or fault on the part of the appellant. The plaintiff pleaded and urged and relied upon the theory, in effect, that the concurrent negligence of nonobservance of the law by each driver of the vehicles combined together directly resulted in the injury and death of Albert Galvan.
The plaintiff's alleged theory of the case must be considered as the correct one, in view of the judgment and the verdict of the jury. It would thus appear that both motor vehicles met and were actually passing each other on the highway going in opposite directions at the place where Albert Galvan and his companion were standing on the shoulder of the roadway on the south side; that in passing each motor vehicle was being driven at a rate of speed much faster than 15 miles per hour; that before, and while passing each other, the driver of the bus was using a part of the center of the traveled asphalt portion of the road, and Holly Taylor was driving his automobile on the right upon a margin of the traveled portion and mostly upon the shoulder, which at the time was muddy and slippery, and all of which acts, combined together, immediately resulted in the automobile of Holly Taylor striking and killing Albert Galvan; that at the time of the passing of the two vehicles only "about ten feet" of the asphalt or traveled portion of the road "was not covered up with dirt" or mud and was visible. The statute expressly requires the drivers of motor vehicles in passing to slow down the speed to 15 miles or less an hour. Article 794, P. C. In passing in opposite directions, each driver is expressly required by the statute to give to the other vehicle one-half the traveled portion of the road as nearly as possible. Article 801, P. C.
In the state of facts mentioned above little need be said about the question of proximate cause. The law is well settled that, when two causes combine to produce an injury to a traveler upon the highway, both of which in their nature are proximate, liability attaches. The generally accepted view in this state is that violation of statutory duty is negligence per se. Hines v. Foreman (Tex.Com.App.) 243 S.W. 479; Orchin v. Fort Worth Poultry Egg Co. (Tex.Civ.App.) 43 S.W.2d 308. And, where concurrent negligence of nonobservance of the law by each operator combined together directly results in an injury, each becomes liable for the whole, even though one may have contributed in a greater degree to the injury, and further inquiry as to proximate cause is not pertinent. Gulf, C. S. F. Ry. Co. v. McWhirter, 77 Tex. 356, 14 S.W. 26, 19 Am.St.Rep. 755; Boyles v. McClure (Tex.Com.App.) 243 S.W. 1080; Schawe v. Leyendecker (Tex.Civ.App.) 269 S.W. 864; 45 C.J. § 487, p. 924; 45 C.J. § 476, pp. 895 and 920. It conclusively appears that the conditions that existed at the time of the injury were such that an ordinarily prudent person might have expected an injury at this location. The breadth of the surfaced portion of the roadway, the muddy condition, and the narrow margin left for travel on the right of the roadway made the use in the manner shown dangerous for a traveler on the shoulder. The fact that Holly Taylor in using the margin on the right may have miscalculated the space or margin in which he might move while using mostly "other than the traveled portion of the road" in passing the bus would not free the appellant from a finding of fault in having contributed to the death of Albert Galvan. There was causal connection between the death and the failure to observe the statute, and the court did not err, it is believed, in refusing the special issues. The proximate cause would not be measured by whether Holly Taylor could have driven by the bus within one foot or two feet proximity to the bus.
The appellant predicates error in the definition of "proximate cause" as submitted to the jury in not including and defining "new and independent cause." There is not inadequacy of the definition as given by the court, and is similar to the one most often stated. Hulen v. Ives (Tex.Civ.App.) 281 S.W. 350; and other cases; Speer on Special Issues (1932) § 580, p. 741. There was no new and independent cause intervening in the injury not set in motion by the original wrongful act of appellant in occupying too much of the main traveled portion of the road. The injury complained of resulted in the ordinary and natural course of events immediately from the negligent violation of the statute on the part of appellant which caused Holly Taylor to drive too far over to the right of the center of the road. 45 C.J. § 488, p. 925. There is applicability of the court's definition to the facts of the case.
Error is predicated upon the court's charge as to the measure of damages. It is urged as an objection that the instruction does not authorize deductions to be made for the upkeep of the deceased during the period of his minority. It is believed the instruction as worded may not be held affirmative error. St. Louis S.W. Ry. Co. v. Shifiet, 98 Tex. 103, 81 S.W. 524; Southwestern Portland Cement Co. v. Bustillos (Tex.Civ.App.) 216 S.W. 268.
It is concluded that the amount of damages awarded by verdict of the jury may not be said to be excessive, and the assignment of error in that respect is overruled.
We have considered the assignments of errors relating to argument of the case before the jury by the attorneys, and conclude that there was no reversible error.
The judgment is affirmed.