West v. Bruns , 294 S.W. 235 ( 1927 )

The contention that the trial court erred when he refused to instruct the jury to return a verdict in appellant's favor is based on the finding that Vetrano also was guilty of negligence which was a proximate cause of the collision. It is insisted it appeared that Vetrano and appellee were engaged (quoting) "upon a joint enterprise in which each had a like interest," and therefore that the negligence the jury found the former was guilty of was imputable to the latter. The rule invoked is stated as follows in 20 R.C.L. 149:

"If two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all in respect to the control of the means or agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to the others."

The evidence was that Vetrano had invited appellee to have dinner with him at Sylvan Beach, and that they were on their way to that place when the accident occurred. There was no evidence that appellee had or exercised equally with Vetrano (or to any extent) a right of control in the operation of the automobile they were riding in. Certainly, therefore, it cannot be said to have appeared as a matter of law that the rule invoked applied in the case. Chicago, R. I. G. R. Co. v. Wentzel (Tex.Civ.App.) 214 S.W. 710; Chicago, R. I. G. R. Co. v. Johnson (Tex.Civ.App.) 224 S.W. 277; Hines v. Welch (Tex.Civ.App.)229 S.W. 681; Barry v. Harding, 244 Mass. 588, 139 N.E. 298; Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Meyers v. Southern Pac. Co. (Cal.App.) 218 P. 284; 29 Cyc. 543, and authorities there cited. As shown in the statement above, the jury found on a special issue submitted to them that appellee herself was not guilty of negligence in the respect charged against her.

It is insisted, further, in support of said contention, that it appeared the negligence the jury found Vetrano to have been guilty of was "a new and intervening cause of the accident," and therefore that the negligence of appellant was remote cause thereof only. Hence it appeared, appellant insists, that he was not liable to appellee on account of the injury she suffered; and he cites Galveston, H. S. A. R. Co. v. Chambers, 73 Tex. 296, 11 S.W. 279, and Haney v. Coal Co. (Tex.Civ.App.) 207 S.W. 375, as cases supporting his view. But as we understand those cases neither of them supports it. The holding in the Chambers Case was that negligence of the injured person, and not negligence of the defendant, was the proximate cause of the injury she suffered. The case would be applicable if the finding here was that negligence of Vetrano was the sole proximate cause of the injury to appellee. But, as shown in the statement above, the finding was that appellant as well as Vetrano was guilty of negligence which was a proximate cause of the accident. The holding in the other case cited was merely that the testimony was not sufficient to show negligence on the part of the coal company which was a proximate cause of the accident. It is not contended here that the testimony did not warrant the finding of the jury that appellant was guilty of negligence in that he failed to use care "to keep a lookout to discover persons and automobiles who might reasonably be expected to be on the highway." Certainly, if that finding was warranted, the negligence of Vetrano in turning the car he and appellee were in towards the filling station was not "a new and intervening cause of the accident"; for the jury could not have found the failure of appellant to keep such a lookout was a proximate cause of the injury to appellee without first finding that had he kept a proper lookout appellant would have discovered the car appellee was in time to have avoided the collision. Aside from what has been said, however, we think a sufficient answer to appellant's contention lies in the rule that "if the concurrent negligence of two or more persons combined together results in an injury to a third person he may recover from either or all." 29 Cyc. 487; Gulf, C. S. F. R. Co. v. Loyd (Tex.Civ.App.)175 S.W. 721; City of Louisville v. Hart's Adm'r, 143 Ky. 171,136 S.W. 212; Galveston, H. S. A. R. Co. v. Vollrath,40 Tex. Civ. App. 46, 89 S.W. 279. It is clear from the testimony that if Vetrano had not attempted to go across the road to the filling station the collision would not have occurred, and just as clear it would not have occurred if appellant had not been guilty of negligence in respects found by the jury.

Appellant complains because the trial court, after instructing the jury that the burden of proving negligence on his (appellant's) part as charged was on appellee, told them that the burden was on him (appellant) to prove by a preponderance of the evidence that Vetrano and appellee were guilty of negligence as charged against them. A like instruction was held to be erroneous in Lyon v. Phillips (Tex.Civ.App.) 196 S.W. 995, the court saying:

"As the evidence in behalf of the plaintiffs may have been sufficient to raise a question upon deceased's want of care, even if the defendant had offered no evidence in that respect, it is believed that the charge as given was erroneous and injurious in this case."

Conceding the instruction in question here was erroneous, we do not think the error in giving it should operate to reverse the judgment, but that it should be treated as harmless under rule 62a for the government of Courts of Civil Appeals. The jury found that Vetrano was guilty of negligence as charged by appellant, and there was nothing in the testimony of appellee as a witness in her own behalf, or in the testimony of any of her witnesses, suggesting she was guilty of contributory negligence as charged against her. Texas P. R. Co. v. Good (Tex.Civ.App.)151 S.W. 617; Cameron Mill Elevator Co. v. Anderson,34 Tex. Civ. App. 105, 78 S.W. 8.

The judgment is affirmed.