Opinion
No. 3670.
April 12, 1929. Rehearing Denied April 25, 1929.
Appeal from District Court, Grayson County; Silas G. Hare, Judge.
Action by F. A. Cantrell, on his own behalf and as next friend for his minor son, against J. C. Magouirk. From a judgment for plaintiff, defendant appeals. Affirmed.
June 13, 1926, a collision between an automobile in which appellee F. A. Cantrell and his minor son, Seaborn Cantrell, were riding and an omnibus owned by appellant J. C. Magouirk and used by him as a carrier of passengers, resulted in personal injury to both F. A. Cantrell and his son. At the rime of the accident, the Cantrells were traveling north on Maxey street in the city of Sherman, and one Weatherford, appellant's employé, was driving the bus west on Lamar street. The collision occurred at a point where the two streets crossed each other. On the theory that the collision was due to actionable negligence on the part of appellant's employé, in that at the time it occurred he was operating the bus at a speed in excess of 20 miles an hour in violation of article 789 of the Penal Code, making it an offense to drive a motor vehicle at such a rate of speed within a city or town, appellee F. A. Cantrell, on his own behalf and as next friend for his said minor son, brought this suit for damages against appellant. On special issues submitted to them, a jury found that appellant's said employé was operating the bus at a speed greater than 20 miles an hour as charged, and that his act in doing so was also operating his car at a speed in excess of 20 miles an hour, but that his act in doing so was not a proximate cause of the collision. The jury having found further that $639.95 would compensate appellee F. A. Cantrell for injury he suffered, and that $250 would compensate his minor son Seaborn for injury he suffered, judgment was rendered against appellant for those sums.
Cunningham Lipscomb, of Bonham, for appellant.
Webb Webb, of Sherman, for appellees.
Appellant does not contend that the evidence did not warrant the finding of the jury that his employé was operating the bus at a rate of speed prohibited by the statute referred to in the statement above, nor the finding that the employé's act in so doing was a proximate cause of the collision; but he insists it did not warrant the finding that appellee F. A. Cantrell's act in operating the car he and his minor son were in at a speed prohibited by said statute was not also a proximate cause of the accident. It may be conceded that, if the testimony of said appellee as a witness should be ignored, there would be merit in the contention. But the jury had a right to believe appellee's testimony, and we think it furnished support for the finding. He said that, traveling north on Maxey street, his car had crossed the street railway company's track on Lamar street and "was half way across the north line" of Lamar street when the bus struck the "right rear wheel" thereof. It is obvious, we think, if appellee's car had reached the point, practically across Lamar street, indicated by his testimony, that the unlawful speed at which it was moving was not the cause of the accident. The fact that the rear wheel of appellee's car was struck indicated that, if it had been moving a little faster, or if the bus had been moving a little slower, the collision would not have occurred. In that view of the case it is clear, we think, that the finding of the jury that the unlawful speed of appellee's car was not a proximate cause of the collision was warranted, and was not inconsistent with their finding that the unlawful speed of the bus was such a proximate cause. That testimony also indicated that, in proceeding over the crossing as he did, appellee did not violate the requirement of article 801(E) of the Penal Code of 1925, that under circumstances specified therein "the operator of a vehicle approaching an intersection on the public highway shall yield the right of way to a vehicle, approaching such intersection from the right of such first-named vehicle."
The judgment is affirmed.