Zucht v. Brooks , 1919 Tex. App. LEXIS 1200 ( 1919 )

IT/T, C. J.

This suit was originally instituted by defendants in error, Roberta Brooks and Ed. Brooks, her husband, hereinafter called appellees to prevent confusion, against Cole Y. Bailey, Clemmie Bailey, Carson Colley, and A. D. Zucht, plaintiff in error, and hereinafter called appellant, to recover damages alleged to have arisen from personal injuries inflicted on the said Roberta Brooks through a collision of automobiles caused through the negligence of the defendants. The cause of action was dismissed as to all the defendants except A. D. Zucht, who, it was alleged, negligently ran into a jitney in which Roberta Brooks was riding and injured her, to her damage in the sum of $990. The negligence was alleged to consist in violations of traffic ordinances of the city of San Antonio by appellant, in not having control of his car at the intersection of East Commerce and Mesquite streets, and in not passing the center of Commerce street when he desired to turn to the left. The cause was tried by jury, resulting in a verdict and judg-' ment in favor of appellees for $490.

There was evidence tending to show that appellee Roberta Brooks was in a jitney car going east on East Commerce street, and when the jitney reached the intersection of Mesquite and Commerce streets it was run into by the automobile of appellant, who had been going north on Mesquite street and desired to turn west on Commerce street, and instead of passing the center of the street, as required by the traffic ordinance, appellant made a short turn to the west or left, and ran into the jitney ¡car, and injured Roberta Brooks in the sum found by the jury.

[1] The first assignment of error complains of a refusal, by the trial judge, to place the following issue before the jury:

“In connection with question No. 2, you are instructed that, if you believe from the evidence that the collision would not have occurred if the said Zucht had not turned his car to the left when he reached the intersection of said streets, and before he passed the center of Commerce street, you will answer said question ‘Yes’; but if you believe from the evidence that it was the running of the jitney car at a high rate of speed that caused the collision, you will answer said question Ño. 2 ‘No.’ ”

That instruction proceeds on the assumption that appellant had violated the ordinance Which required him, when he desired to turn to the left, to pass beyond the center of the street before turning, but, if the jitney driver had violated an ordinance as to rate of speed,'then appellees could not recover. In other words, if the acts of two tort-feasors concurred in producing the collision, the innocent parties, who had nothing to do with causing the 'result, could not recover. That is not the law as applied to the facts in this case. The injured party was riding in a public conveyance, which was not under her authority or control, and the negligence of the driver of the public conveyance was not her negligence, and appellant could gain no advantage from the negligence of the driver, unless appellant’s negligence had not concurred' with that of the driver in producing the result. If both were guilty of negligence, both were liable to the injured party, and she could sue one or both as she saw fit. O’Connor v. Andrews, 81 Tex. 28, 16 S. W. 628; Railway v. Vollrath, 40 Tex. Civ. App. 46, 89 S. W. 279; Ray v. Railway, 40 Tex. Civ. App. 99, 88 S. W. 466; Railway v. Mills, 53 Tex. Civ. App. 359, 116 S. W. 852; Railway v. Edwards, 55 Tex. Civ. App. 543, 118 S. W. 838; Moore v. Kopplin, 135 S. W. 1083.

[2, 3] If appellant caused the accident by turning his car to the left before reaching the center of the street, his act, being in ■ violation of an ordinance, was negligence per se, and the court was not called upon to submit any issue as, to whether such act was negligent, and every issue in the case was clearly presented, when the court asked:'

“On the occasion of the accident did A. D.' Zucht turn his automobile to the left before it had passed the center of Commerce and Mesquite streets?” and “Did the turning of his automobile to. the left before it had passed the center of Commerce street cause the accident? ”

Under the facts of this case, if the car was turned to the left before reaching' the center of Commerce street, it was in violation of law, and was negligence, and if such unlawful turning was the cause of the accident, it was the proximate cause, whether it was' the sole cause, or concurred with the negligence of the jitney driver. It was unnecessary to submit an issue as to whether the jitney driver's negligence caused the collision, when the evidence showed and the jury found that appellant by his negligence caused the accident. Our conclusions dispose of the second, third, fourth, fifth, and sixth assignments of error, :as well as the first.

[4] The court placed the burden of proof •upon appellees as to every material allegation in their petition, and it was unnecessary to repeat that instruction at the request of appellant. The seventh assignment or error is overruled. There is nothing that tends to indicate that the jury were misled as to the burden of proof being on appellees as to the negligence of appellant and the amount of the damages, and that is the test. Railway v.. Smith, 66 Tex. 167.

[5] The eighth assignment of error is without merit. Evidence that Roberta Brooks may have been conveyed from a house of ill fame shortly before the accident would not tend to contradict her testimony to the effect that she had been receiving $15 a week for playing a piano in a theater. The evidence was properly excluded.

[6] The ninth assignment of error proceeds upon the theory that the verdict is contrary to the decided preponderance of the evidence, because appellees had only two witnesses, Roberta Brooks and Polk, the jitney driver, while appellant had three disinterested witnesses. The jury evidently believed that the two witnesses for appellee had sworn truthfully, as they had the right and prerogative to do. One of the witnesses, Wesley Jackson, who is claimed by appellant, testified:

That he “saw an automobile coming east on the right-hand side of Commerce street; that another car burst out of Mesquite street, and kind of cut the car coming on Commerce street, and threw this car upon the track near the street car track.”

The jury could have found that the evidence tended to corroborate the evidence of Roberta Brooks rather than that of A. D. Zucht

The judgment is affirmed.

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