Keevil v. Ponsford , 1915 Tex. App. LEXIS 155 ( 1915 )

Keevil brought this suit against Ponsford, Pollock, and the Santa Fé Fuel Company to recover damages arising from personal injuries. Pollock was a contractor, building a house on north side of Montana street in city of El Paso. Ponsford was a subcontractor doing the brickwork. Ponsford bought the brick used in the construction of the house from the Vinton Brick Company, to be delivered unloaded in the street. The Santa Fé Fuel Company was engaged in delivering the brick to Ponsford. The latter had nothing to do with the brick until they were delivered and unloaded.

On the night of November 28, 1912, there was a pile of brick belonging to Ponsford in Montana street, on the north side, in front of the house which he and Pollock were engaged in building. The Santa Fé Fuel Company had also left there a loaded wagon of brick for Ponsford. The wagon stood in the street in a slanting position, one of its rear wheels on the south extending 10 to 16 feet in the street from the curb on the north. An ordinance of the city required red lights to be placed during the night at both ends of every obstruction upon any street. Upon the night in question the wagon and pile of bricks were not protected by lights as the ordinance required. A building permit, which had been issued for the construction of the house, carried with it a license to the contractors to place building material in the street while construction was in progress.

Keevil was a policeman of El Paso; his special duty being to detect and arrest violators of the speed limit law. On the night mentioned, he discovered an automobile running at the rate of 60 miles an hour in a westerly direction on Montana street. He at once pursued the car, riding on a motorcycle, and while running 50 or 60 miles an hour collided with the rear wheel of the wagon aforesaid and sustained serious injuries. At the time of the accident he was traveling in a westerly direction and a few feet north of the center of the street Upon trial, a peremptory instruction was given in favor of the defendants. In accordance wherewith verdict was returned and judgment rendered.

It cannot be denied that it was negligence of the grossest character to obstruct the street in the manner indicated without complying with the ordinance relative to placing lights thereon. On the other hand, Keevil, too, was traveling at a rate of speed prohibited by law, and in so doing was guilty of negligence per se. Railway Co. v. Brown,11 Tex. Civ. App. 503, 33 S.W. 146. Peace officers are not excepted from the operation of the laws limiting the speed of vehicles upon public highways. Certainly, an exception should be made in favor of those whose special duty it is to detect and arrest parties running in excess of the legal limit, while discharging such duty. The courts, however, cannot ingraft this exception. It must be done by the legislative body. But plaintiff's negligence in this respect would not preclude recovery, unless it concurred with the negligence of defendants and proximately contributed to the injury. Martin v. Railway Co., 87 Tex. 117,26 S.W. 1052; Railway Co. v. Parks, 40 Tex. Civ. App. 480, 90 S.W. 343; Campbell v. McCoy, 3 Tex. Civ. App. 298, 23 S.W. 34; Railway Co. v. Garcia, 75 Tex. 583, 13 S.W. 223; Railway Co. v. McClain, 80 Tex. 85,15 S.W. 789. Whether an act be negligence per se, because violative of a duty imposed by statute or ordinance, or be negligence because in violation of some duty under general principles of law, the same rules must be applied in determining the question of proximate cause. Railway Co. v. Dobbins, 40 S.W. 861. Was the court below warranted in assuming as a matter of law that plaintiff's negligence was a proximately contributing cause?

Undoubtedly the evidence strongly tends to establish this fact, but we are not prepared to say no other conclusion could be reached by reasonable minds. The evidence might be so unsatisfactory upon this issue that the court would have been warranted in setting aside a verdict in plaintiff's favor, and yet not of that character which would authorize an adverse peremptory instruction. We are of opinion there is room for a difference of conclusion by reasonable minds upon the issue, and that the peremptory instruction was improperly given. In view of retrial, we refrain from discussion of the details and probative force of the evidence.

The Santa Fé Fuel Company insists that in any event the judgment as to it should be affirmed, since the undisputed evidence shows the duty of placing lights upon the obstruction did not rest upon it. On the other hand, Pollock and Ponsford contend that in any event the judgment should be affirmed as to them. The peremptory instruction, upon its face, shows it was given upon the theory that plaintiff's recovery was barred by his own contributory negligence, and the defense seems to have proceeded mainly upon that theory. What the evidence upon retrial may develop as to liability of the respective defendants cannot be definitely foreseen. We do not think this a proper case to affirm as to certain of the defendants and reverse as to others, but the ends of justice require a general reversal and it will be so ordered.

Reversed and remanded.

WALTHALL, J., did not sit in this case.