Gersdorf-Sloan Ambulance ServIce, Inc. v. Kenty , 1934 Tex. App. LEXIS 986 ( 1934 )

On Motion for Rehearing.

BICKETT, Chief Justice.

The jury having found that appellee was guilty of contributory negligence proximately causing or contributing to his injury, appellee was not entitled to recover judgment against appellant, unless he should be entitled to do so upon the theory of discovered peril.

The facts in this ease were developed similarly as upon a former trial, and are fully stated in the opinion of this court upon the former appeal. 46 -S.W.(2d) 469.

For further statement of the facts pertinent to the issue of discovered peril, the following is the testimony of the driver of the ambulance, given by the witness in person upon the first trial and read from the former record upon the second one, to wit:

“When I first saw him come out I applied the brakes and when he got to the middle of the street he hesitated and turned around and started to go back and I released the brakes when I saw he was going to be out of peril and he changed his mind and started back and ran the rest of the way and I applied the brakes and kept on. I pulled on the emergency brake and my attendant was ringing the bell and I was blowing the horn and I had the red light burning. I saw I couldn’t miss him so I pulled into the right curb and, of course, cars were parked there and I had an accident with a car, besides the man. About the time I hit the truck that was parked on the side of the street this man ran into the side of my car. He ran into the spare tire that was - on the left front fender. The contact of the force of him hitting this tire threw his head against the spot light we had on the left side and that broke the glass in this spot light. Three red spot lights were on the car and they were burning. Their color was red. * * si«

“After the negro got to the middle of the street and started to go back to the curb, like anyone would think, I thought he was out of peril and, of course, I released the brakes, but I did not start again because I didn’t have time to put my foot on the .accelerator.”

The issue of discovered peril is not in the case, for the evidence shows conclusively and without contradiction that the driver did not discover, within sufficient time to avert the collision by the use of all the means at hand and with due regard to the safety of himself and the other occupants of the ambulance, that appellee was in a perilous situation from which he could not or might not extricate himself, and likewise shows that the driver did seasonably use all the means at hand consistently with the safety of himself and the other occupants of the ambulance in the attempt to avoid the collision.

Therefore appellant’s motion for rehearing is granted, the judgment of the district court is reversed, and judgment is here rendered that appellee take nothing by his suit.