Dollar Dodge Rent Service, Inc. v. McEwen , 1925 Tex. App. LEXIS 522 ( 1925 )

The propositions of appellant present, in effect, the two points in view that (1) the evidence establishes contributory negligence as a matter of law, and (2) the evidence fails to establish the special negligence pleaded. Appellant specially pleaded contributory negligence of appellee in bar of his recovery, and the evidence, considered as a whole, clearly made the issue. The undisputed evidence shows that the automobile was in its proper place on the street, on the right-hand side of the street, going east. The appellee was also in his rights in crossing the street from the north to the south side. It is obvious from the evidence that the appellee did not see the automobile, until just before it struck him, and it was too late to get out of its way. The speed of the car and the lack of any warning might have been the cause. Also the lack of sufficient alertness on appellee's part might have been the cause. In one view of the evidence, the appellee might have seen the automobile sooner, had he merely looked to his left, the direction of the approaching car, there being nothing, as he said, to obstruct his vision in that direction, and thus have avoided being struck, although the car was approaching at a high rate of speed. But considering all the circumstances of appellee's conduct, there is not an absence of all care and prudence on his part for his safety in going across the street. He first used the precaution, before starting across, to look and ascertain the use being made of the street. He saw no approaching cars and started to alertly cross the street, in clearance distance of cars on the street, as it appeared to him. The car could quickly come on him, being run at a fast rate of speed, and no warning given of its approach. It it be conceded that he might have avoided being struck by being more alert, yet it does not necessarily follow that appellee would be guilty of negligence as a matter of law, in view of all the attending circumstances. The question became an open one, in all the facts and circumstances, as to whether the appellee exercised reasonable care in going across the street, and while crossing the street such as an ordinarily prudent person would have done. Whatever the finding of fact in the first instance could properly have been, the appellate court would not, as a pure matter of law, be authorized to set it aside or disturb it. El Paso Electric R. Co. v. Terrazas (Tex.Civ.App.) 208 S.W. 387; Lancaster v. Browder (Tex.Com.App.) 256 S.W. 905.

In respect to the second point, the appellant's insistence is that, as there was no allegation nor proof offered to show that the alleged unlawful rate of speed "occurred in the business district" of the city of Dallas, a recovery was not allowable thereon, as being a violation of express terms of law, the city ordinance or the state statute. The negligence pleaded by the appellee, and upon which he relied for recovery, was that the automobile was being operated, "at or about the intersection of Commerce street and Field street in the city of Dallas," at a "rate of speed in excess of 30 miles an hour," which rate of speed was forbidden in that locality by "the ordinances of the city of Dallas and the state of Texas, in such cases made and provided," and "without sounding the horn of said automobile or giving any warning whatever" of its approach. The petition does not specially allege that the particular locality of injury was within the "business district" of the city, nor does it exclude the idea that the particular locality was within the "business district." Therefore the terms of the city ordinance respecting the limit of speed and the localities fixed are important to be considered. The city ordinance, as proven, undertakes to regulate the rate of speed of automobiles within the entire city limits. The ordinance by its terms first bounds a certain area by streets and specially designates that locality as a "business district," and fixes a speed limit therein which "shall not exceed a greater rate of speed than 15 miles per hour." The ordinance next provides generally as follows:

"The maximum speed in parts of the city, outside of the hereinafter designated business district, shall be as provided by the state law per hour."

The ordinance, then, must be considered as providing a speed limit for automobiles as applicable to (1) the specially bounded "business district" of "15 miles per hour," and (2) to "parts of the city outside of the hereinafter designated business district" as provided "by the state law per hour." It clearly intended to adopt and make applicable the state law, so far as pertained to the remaining streets and localities within the corporate limits of the city. And the speed limit, "as provided by the state law" in force at the time of the injury was: (1) "It shall be unlawful to drive at a rate of speed in excess of 25 miles per hour"; and (2) "nor at a greater rate of speed than 10 miles per hour in the business district of cities of more than 40,000 population."

Therefore, in view of the allegations, the burden of proof rested upon the appellee to show, in order to recover damages, that the automobile was being operated to his injury on the specified public street in the city of Dallas without signal or warning at a rate of speed specially forbidden in that locality by the terms of the city ordinance. There is no evidence making applicable the terms of the ordinance forbidding a "greater rate of speed than 15 miles per hour," for it is not shown that "Commerce street," at the point where the injury occurred, was within the boundaries specially defined in the ordinance. And it may be, for aught the record shows, that "Commerce street," at the point of injury, was not in fact within the specially bounded "business district." But it cannot properly be said that there is an absence of any evidence to support the court's conclusion, as we must assume he made in support of the judgment, that the appellant violated the speed limit of "10 miles per hour." The allegation in the petition is broad enough to cover that ground, and while the evidence in that respect is not as full as it probably could have been made, yet it is of probative force and reasonably definite enough to support the court's conclusion. For there is an absence of any evidence in the record tending to weaken or disprove the probative force thereof. The witness King testified, "at any rate, I know that he was exceeding the speed limit, and the speed limit at that time and place was 10 or 12 miles an hour." The evidence in behalf of appellee was that the automobile was running at 25 miles or more an hour. The witness may have been in a position to "know," in point of fact, the lawful speed limit at that place. It may have been within his knowledge, had he been asked the question, that that "place" was a place chiefly devoted to business purposes, constituting it a "business district" and thereby making applicable the lawful speed limit of "10 miles an hour." He may have had means of knowing in several ways the speed limit at that "place." There is no evidence tending to show that Commerce street, at the point of injury, was not in fact "a business district," in contradistinction to a residence district.

The appellant further urges that the amount of damages awarded is excessive. We are unwilling to disturb the trial court's judgment in this respect, and therefore overrule the assignment, since it might properly be found that the injury was to the extent determined by the court.

The judgment is affirmed.