Dallas Ry. & Terminal Co. v. Redman , 88 S.W.2d 136 ( 1935 )

FUNDERBURK, Justice.

This suit was brought by Virginia Red-man against Dallas Railway & Terminal Company to recover damages for personal injuries. Plaintiff’s petition sought to allege actionable negligence resulting in defendant’s street car striking the plaintiff and throwing her against a passing automobile, which in turn threw her against the pavement, causing the injuries described. Upon a jury trial, all issues submitted were found by the verdict in favor of the plaintiff. From a judgment for $7,000 rendered in accordance with such verdict for the plaintiff, the defendant has appealed.

Many questions are presented of varying degrees of interest and difficulty. Only one, which we have deemed to be properly determinative of the appeal, will be discussed. That is, whether plaintiff’s petition, as against a general demurrer, was sufficient to state any cause of action. This question is dependent upon whether the petition contains “a statement * * * of the facts constituting the plaintiff’s cause of action.” R.S. 1925, art. 1997. To be a good pleading, by all tests, such “statement” should be in “logical and legal form,” but a defect consisting of a want of logical and legal form, provided it be a statement of all the material facts, can only be corrected by action upon a special exception. The question of whether a pleading contains “a statement * * * of the facts” constituting a cause of action is subject to certain tests. One is: Are the essential averments consistent? Of the facts stated, all essential facts must he susceptible of proof. Subject to the rule that inconsistent allegations of fact may be set forth in separate counts, or in the alternative, the essential facts alleged as constituting the cause of action must be consistent. Townes’ Texas Pleading, p. 425; Hillebrant v. Booth, 7 Tex. 499; Rowe v. Horton, 65 Tex. 89; Barry v. Screwmen’s Benev. Ass’n, 67 Tex. 250, 251, 3 S.W. 261; Steinback v. City of Galveston (Tex.Civ.App.) 41 S.W. 822; Stephens v. Stephens (Tex.Civ.App.) 281 S.W. 1096; Kynerd v. Security Nat. Bank (Tex.Civ.App.) 207 S.W. 133; Stanley v. Sumrell (Tex.Civ.App.) 163 S.W. 697. The foregoing authorities support the proposition that if a plaintiff alleges a fact material to the statement of a cause of action, but also (not in a separate count, or in the alternative) alleges another fact which, if true, the first could not be true, the allegations nullify each other. The result is the same as if the fact be not alleged at all. A defendant has the right to have taken as true any material allegation of fact in plaintiff’s petition. No proof thereof by defendant will be required in order that he may have the full benefit of such fact. If, therefore, a material fact alleged in plaintiff’s petition, be, in effect, denied by the plaintiff by his averment of an inconsistent fact, the pleading affords no basis for the production of evidence to prove such fact. Plaintiff cannot support by evidence a fact contrary to his own allegations concerning an essential fact. It is elementary, of course, that he cannot recover without proof of every material fact. From these considerations it is obviously true that plaintiff’s petition may allege every fact necessary to show a cause of action, and, yet, his petition be subject to a general demurrer if his allegation of one or more essential facts be in legal effect nullified.

It will be assumed as to the pleading now under consideration, that it states all the facts necessary to show a cause of action. If it be insufficient, it is so because the allegation of one or more facts is nullified by the allegation of inconsistent facts. The pleading contains no separate counts. None of the allegations of fact, as distinguished from legal conclusions, is alleged in the alternative to any other fact.

Plaintiff alleged that while she was on the north side of Elm street in Dallas waiting for a street car going west to take her to her place of work she saw a street car approaching about' fifty feet away, and upon signal from her the speed of the car was retarded “from a speed in excess of 20 miles an hour when said street car was approximately fifty feet east of the plaintiff * * that plaintiff saw said car slow up when It was about fifty feet from her, and that while she does not know, and cannot approximate accurately the rate of speed to which the momentum of said car had been retarded she alleges that there was considerable slowing up of said car indicating that it was going to stop; that the front end thereof was even with the west wall of the Continental Gin Company which was the usual and customary place where the plaintiff boarded same, and where the defendant usually accepted her as a passenger; that the speed to which the defendant reduced the motion of said car induced the plaintiff to believe that he intended to stop and caused her to come closer to the track * * for 'the purpose of boarding said car * * that while she was a distance of about two feet from said car track and said street car was only a distance of three or four feet away from her still approaching at said retarded speed, an automobile which plaintiff had not previously seen * * * suddenly started passing said street car and was between plaintiff and the curb from which she had just stepped so that she could not return thereto and get out of the way; and that the defendant’s motorman saw the plaintiff at said time * * * and saw that plaintiff was compelled to step on the street car track to avoid being hit by said automobile; that plaintiff did step on the said track about two feet further west of where she would have boarded the front end of said street car, and was out of the way of said automobile and was safe and would not have been injured had the defendant’s motorman applied his brakes and stopped said street car at the usual and customary point.” As indicated, parts'of the above quotation from the petition have been omitted. This is done for the purpose of better appraising both the allegations quoted and those omitted. Considering first the allegations quoted, it seems clear that they eliminate as grounds of actionable negligence (meaning thereby negligence which was a proximate cause of the injuries) ev-cry act or omission of the defendant charged as negligence and a proximate cause, whether with reference to the speed of the car, ringing the bell, keeping a lookout, observing ordinances, or anything else occurring prior to the instant when plaintiff step-lied upon the street car track five or six feet in front of the moving car. According to her allegations, plaintiff was standing two feet from the track, had seen the advancing car fifty feet away, and the motorman had seen her in that position. No fact is alleged which would make it his duty to foresee under such circumstances that she would suddenly step immediately in front of the street car. Therefore, no act or omission charged to be negligence on the part of the defendant could under the facts alleged have resulted in any injury to the plaintiff but for her act of suddenly stepping upon the track in front of the car. No act or omission charged as negligence which had occurred before, or was in operation prior to the time she stepped upon the track, could be a proximate cause of her injury, unless such injury, or like injury, should have been reasonably foreseen as a natural and probable consequence of such act or omission. There is no presumption that the motorman was aware of the unlawful action of the automobile driver, and there is no allegation to show that he did know of it prior to plaintiff’s stepping on the track. No fact was alleged to charge the defendant with any duty to the plaintiff because of the action of the automobile driver prior to that time. By her own allegations, plaintiff, when she stepped upon the street car track, was in a place of safety but for the alleged wrongs of the defendant through its motorman then and thereafter occurring. It is, therefore, our conclusion that plaintiff’s petition stated no cause of action unless it was one involving a breach of duty arising because of plaintiff’s presence on the street car track under the circumstances alleged by her as before stated.

Let us recall here that the petition alleged “that the defendant’s motorman * * saw that plaintiff was compelled to step oa said street car track to avoid being hit by said automobile.” It was then further alleged “that the operator of said street car actually saw, realized and discovered the position of peril and danger in which the plaintiff herein was placed in time to have avoided striking the plaintiff and injuring her at the time in question, but that said motorman after having seen, discovered and realized the peril and danger in which plaintiff was placed failed to exercise care to stop the street car or apply the brakes and avoid striking the plaintiff although he could have done so without putting either himself or other passengers on said street car, or the street car itself in danger of being injured.” Regardless of the fact that the petition may have been insufficient to state a cause of action based upon any breach of duty arising before plaintiff stepped upon the track, it would seem that the foregoing allegations in connection with those previously quoted, if not nullified, would be sufficient to state a cause of action arising after she got upon the track on the theory of discovered peril. But, as an expressly additional ground of negligence, and, therefore, of course, not one asserted in the alternative, plaintiff alleged as a proximate cause of her injuries “that the operator of said street car at the time and on the occasion herein alleged failed to exercise care to discover and realize the position of peril and danger in which the plaintiff herein was placed at the time and on the occasion and that the said operator could have, in the exercise of due care, discovered the position of peril and danger in which plaintiff was placed.” Manifestly, if the proximate cause of plaintiff’s injuries was the negligent failure of the defendant to discover her position of peril, then the alleged negligence of the defendant in failing to stop because her position of peril and danger had been discovered could not be a proximate cause of her injuries. There-could be no cause of action based upon discovered peril alone if, as plaintiff alleges, the motorman did not see her danger in time to prevent it. The situation is the same as that which recently prompted us to remark upon a seemingly “growing tendency in negligence cases for the plaintiff to specify so many and detailed separate and independent grounds of negligence, and for defendants, likewise, to allege so many separate and distinct grounds of contributory negligence, that quite often it appears in the very face of the pleadings that if a particular act or omission is a proximate cause of the injury, another act or omission also alleged to be a proximate cause could not be.” Jeff T. English v. Terry (Tex.Civ.App.) 85 S.W.(2d) 1063, 1066. Under the principles hereinbefore stated, the facts alleged in plaintiff’s petition uncontradicted by other allegations therein, do not, in our opinion, constitute the required “statement * * * of the facts” to show a cause of action for which reason the judgment should be reversed, and the cause remanded, which is accordingly so ordered.