Opinion
No. 3427.
October 8, 1936. Rehearing Denied October 22, 1936.
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Action by J. N. Palmer and wife against the Texas Motor Coaches, Incorporated. From a judgment in favor of plaintiffs, the defendant appeals.
Affirmed.
Palmer and wife brought this suit to recover damages for personal injuries sustained by Mrs. Palmer, who was struck by a bus of appellant at the intersection of Jackson and Poydras streets in Dallas.
Jackson street runs east and west. Poydras runs north and south. Jackson street, east of Poydras, is 29 feet 10 inches wide. West of Poydras it is 49 feet 9 inches wide. Poydras street is 29 feet 11 inches wide. About 3:30 p. m., Palmer, accompanied by his wife, drove in his car to the intersection and stopped on the north side of Jackson just west of Poydras. The car was facing west and 10 or 12 feet west of Poydras. On the south side of Jackson and about 60 or 70 feet west of Poydras there were two automobiles parked double. Mrs. Palmer alighted and crossed Jackson to the southwest corner of the intersection to deposit a letter in a mailbox there. The box was on the sidewalk at the point of the intersecting curbs. She deposited the letter, passed in the rear of the box to the west, and started to cross Jackson to return to the car. She stepped off the sidewalk in the pedestrian traffic lane. According to her testimony, which is supported by the testimony of other witnesses, she had taken just one step off the sidewalk when the bus, which came from the west on Jackson street, turned to its right onto Poydras street. As it turned and passed, the right side of the bus struck Mrs. Palmer, inflicting the injuries complained of. Mrs. Palmer testified that when she stepped off the curb she looked to the west to see if the street was clear and saw the bus coming around a parked car. She also testified she thought the bus was going straight ahead and did not know it was going to turn to the right. The jury found:
1. Immediately before the collision the bus was running in excess of 20 miles per hour.
2. The driver turned the bus sharply to the right into Poydras street without first ascertaining the position of Mrs. Palmer.
3. The driver failed to have the bus under control.
4. The driver failed to keep a proper lookout for Mrs. Palmer.
5. The driver failed to reduce the speed of the bus as it approached Poydras.
6. The driver failed to sound his horn before the collision.
It was further found that each of the foregoing acts and omissions constituted negligence proximately causing the injuries.
Issues as to discovered peril and unavoidable accident were submitted and found in plaintiff's favor. Various issues as to contributory negligence on part of the plaintiffs were submitted and found in their favor.
Other findings to this effect were made:
(a) The respective widths of Jackson and Poydras streets where they intersect was not the sole proximate cause of Mrs. Palmer's injuries.
(b) J. H. Patello was not negligent in double parking his car on Jackson street west of the intersection of Poydras street.
(c) The condition of traffic at and near the intersection of Jackson and Poydras streets was not the sole proximate cause of Mrs. Palmer's injuries.
(d) The difference in the width of Jackson street west of Poydras as compared with its width east of Poydras was not the sole proximate cause of Mrs. Palmer's injuries.
Judgment was rendered in plaintiff's favor for the damages assessed.
Autry Norton, Logan Ford, and Worsham, Burford, Ryburn Hincks, all of Dallas, for appellant.
Caldwell, Gillen, Francis Gallagher, of Dallas, for appellees.
Appellant complains of the failure of the court to peremptorily instruct a verdict in its favor and of the denial of its motion for judgment non obstante veredicto. It asserts no actionable negligence upon its part was shown, and the evidence establishes contributory negligence upon Mrs. Palmer's part as a matter of law.
This opinion will not be burdened and lengthened by detailed statement of the evidence. Suffice it to say the evidence abundantly supports the findings numbered 1, 2, 4, 5, and 6, as above stated. And under the facts reflected by the record the jury was authorized to further find such acts and omissions each constituted negligence proximately causing Mrs. Palmer's injury.
As to the issue of contributory negligence, the jury would have been warranted in finding Mrs. Palmer guilty of such negligence, but it cannot be said she was so guilty as a matter of law. She testified she saw the bus and thought it was going straight ahead. She was justified in so believing by the rate of speed the bus was traveling and the driver's failure to reduce its speed or sound the horn. Under such circumstances, she was not necessarily required to anticipate the bus would sharply turn to its right into Poydras, thereby rendering her position just off the sidewalk a perilous one.
We also overrule the assertion the evidence does not raise the issue of discovered peril.
The driver of the bus testified he did not remember seeing anybody standing on the corner near the mailbox on that trip. There was nothing to obstruct his view of Mrs. Palmer, and the jury might have presumed he did see her, though he swore he did not "remember" seeing any one on the corner near the mailbox. Brown v. Griffin, 71 Tex. 654, 9 S.W. 546.
We also overrule the contention the court's definition of "position of peril" is erroneous, and defendant's requested instruction should have been given to the effect "that the plaintiff's wife, Mrs. Lella Mae Palmer, could have been in a position of peril only if she were pursuing a course which probably would terminate in serious bodily injury to her, and it reasonably appeared to the defendant's driver of the bus, from facts and circumstances within his knowledge, that in pursuing such a course the plaintiff's wife, Mrs. Lella Mae Palmer, would probably pursue it to the end." The court's definition is correct and was sufficient unless the evidence presents the theory that the driver of the bus saw Mrs. Palmer on the sidewalk and had no reason to anticipate she would leave that place of safety and place herself in a perilous position in the street.
The evidence does not raise such theory. The testimony of Mrs. Palmer and other witnesses shows she stepped from the sidewalk in ample time for the driver to have seen her, and the driver does not claim he saw her on the sidewalk. The inference from his testimony is he did not see at all.
But aside from these considerations, the other findings of actionable negligence support the judgment, and any error in the charge relating to discovered peril is harmless.
Error is assigned to the exclusion of certified copies of judgments convicting plaintiff J. N. Palmer, who testified in the case, of forgery; also to the exclusion of a picture of plaintiff's witness, Weston Schaefer; also to certain remarks of the trial judge to counsel for defendant.
The convictions occurred 19 years before the trial. It was shown Palmer was pardoned after serving seven months. The pardon recited he "has served almost seven months of sentence, with a good prison record, and executive clemency is recommended by the trial judge, the district attorney, together with almost the entire official family of Harris County, who base their recommendation upon the fact that appellant is only 22 years of age, and was beguiled by older men to commit the offense." It was further shown he had not been again in the penitentiary; that he was employed; he and wife were members of and church attendants. Under such circumstances, the court did not abuse its discretion in excluding the judgments of convictions upon the ground they were too remote. 70 C.J. 896; Bernard's, Inc., v. Austin (Tex. Civ. App.) 300 S.W. 256; Everett v. State, 122 Tex.Cr.R. 626, 57 S.W.2d 140; Bullington v. State, 78 Tex.Cr.R. 187, 180 S.W. 679; Vick v. State, 71 Tex.Cr.R. 50, 159 S.W. 50; Harris v. State, 114 Tex.Cr.R. 509, 26 S.W.2d 216; Anderson v. State, 113 Tex.Cr.R. 450, 21 S.W.2d 499; Lott v. State, 123 Tex.Crim. 591, 60 S.W.2d 223.
There is nothing to show the relevancy of Schaefer's picture, and we know of no reason why the record should have been incumbered by its admission. The exclusion presents no error.
As to the remarks of the trial judge, they were provoked by the conduct of counsel for defendant in disregarding the rulings of the court upon the exclusion of the judgments above mentioned, and in attempting indirectly to get before the jury the evidence excluded. Under such circumstances, the remarks will not be treated as ground for reversal. Fox v. Gulf, C. S. F. Ry. Co. (Tex. Civ. App.) 80 S.W.2d 1072 (error dismissed); Shuttles v. Butcher (Tex. Civ. App.) 1 S.W.2d 661; Daniels v. Starnes (Tex. Civ. App.) 61 S.W.2d 548; American Nat. Ins. Co. v. Nussbaum (Tex. Civ. App.) 230 S.W. 1102.
Complaint is made of the court's definition of proximate cause in that it omitted the conception of a new and independent cause. The definition given was correct. It was not necessary to refer to an independent cause. Texas-Louisiana Power Co. v. Bihl (Tex. Civ. App.) 43 S.W.2d 294; West Texas Coaches v. Madi (Tex. Civ. App.) 15 S.W.2d 170, affirmed (Tex.Com.App.) 26 S.W.2d 199; Panhandle S. F. Ry. Co. v. Miller (Tex. Civ. App.) 44 S.W.2d 790; Orange N.W. Ry. Co. v. Harris (Tex. Civ. App.) 57 S.W.2d 931; Texas P. Ry. Co. v. Bufkin (Tex. Civ. App.) 46 S.W.2d 714; Offer v. Swancoat (Tex. Civ. App.) 27 S.W.2d 899.
Furthermore, the only possible issues of new and independent causes suggested by the evidence were submitted, and findings with respect thereto returned adverse to appellant.
The criticism of the charge contained in appellant's last two propositions is without merit because appellees did not seek recovery of any damages because of an aggravation of a pre-existing physical condition of Mrs. Palmer. Nor does the evidence raise any such issue. Furthermore, the court specifically instructed the jury not to allow any damages for any pre-existing ailment.
Affirmed.