Schneider v. Delavan , 118 S.W.2d 823 ( 1937 )

Paul Schneider, en route at night, in his car, from Seguin to San Antonio, pulled over to his right and parked his car partly on the paved lane of the highway, to adjust his car lights, which had gotten out of order.

Aubrey Delavan, a fifteen-year-old boy, driving his car along the same way at a speed found by the jury to have been in excess of forty-five miles per hour, ran his car into the rear end of Schneider's car and careened around against Schneider, who at the moment of the impact was standing alongside his own car, with one foot on one of its running boards. As a result Schneider's leg was broken and he was otherwise injured, Delavan was slightly injured. Both cars were more or less wrecked.

Schneider sued Delavan for damages occasioned by his personal injuries, and Delavan, reconvening, sued Schneider for damages to himself and his car. The case was tried to a jury, upon whose findings the trial judge rendered judgment denying recovery to either party. Schneider has appealed. The jury found damages to Schneider in the sum of $1,250, and to Delavan in the sum of $75. Each party recovered of his adversary the costs incurred in his behalf.

Twenty-nine special issues were submitted to the jury, who answered all those not conditional upon previous answers. The jury findings are, some of them, inconsistent and in conflict. At least one of them is a complete non sequitur. Among those findings were these:

1. That just before the collision Delavan was operating his car at a rate of speed in excess of forty-five miles per hour. They then found that this was not negligence, although it was so as a matter of law.

2. That Delavan failed to keep a proper lookout, and that such failure was a proximate cause of Schneider's injuries.

3. That Delavan failed to have his car under proper control, and such failure was a proximate cause of Schneider's injuries.

4. That Delavan discovered Schneider's perilous position in time to have avoided the collision with the use of the means at his hand, but that Delavan did use such means! These findings make a complete non sequitur, since the collision did in fact occur.

The foregoing findings relate to the case made against Delavan. On the other hand, the jury found as follows upon the case made against Schneider:

1. That Schneider negligently caused or permitted his car to be parked on the highway without lights, which was a proximate cause of Delavan's injuries.

2. That Schneider negligently caused or permitted his car to be "partly parked on the paved portion" of the highway, which was not a proximate cause of Delavan's injuries.

3. That Schneider negligently caused or permitted his car to be parked on the usually traveled portion of the highway, which was not a proximate cause of Delavan's injuries.

4. That Schneider negligently failed to keep a proper lookout, which was a proximate cause of "the collision" and injury to Delavan.

5. That Schneider's failure to warn oncoming vehicles was not negligence.

The jury found that the collision was not an unavoidable accident.

Excluding the neutral findings, the jury found that Schneider's injuries were proximately caused by Delavan's negligent failure to keep a proper lookout, and to keep his car under proper control. These findings, in the absence of findings that Schneider's injuries were caused or contributed to by his own negligence, warranted judgment against Delavan for the amount of damages suffered by Schneider. This is obvious.

On the other hand, by the same test, the jury found that the "collision and any injuries" to Delavan were proximately caused by Schneider's failure to keep a proper lookout.

The issue of contributory negligence was not submitted, nor was its submission requested by either party. Appellee contends that the finding that Schneider's negligent failure to keep a proper lookout proximately caused "the collision and any injuries" to Delavan established an effectual implication that that negligence was the proximate cause of Schneider's own injuries. We cannot agree to that contention. Presumptions or inferences will not be indulged in order to convict a person of contributory negligence; it will always be presumed, rather, that a person will exercise reasonable care and caution to avoid or prevent injury to himself, and that presumption will prevail until overcome by findings in a jury trial, unless the evidence is so conclusive and overwhelming as to show the contrary as a matter of law. Merritt v. Refining Co., Tex. Civ. App. 103 S.W.2d 415. Certainly, the record here is not such as to shake that presumption, and appellee does not contend it is. The left-handed finding that Schneider's negligence proximately caused the collision and Delavan's injuries cannot be given effect as a finding that Schneider was guilty, as a matter of law, of contributory negligence resulting in his own injuries, which the jury found were proximately caused by Delavan's negligence. Certainly this is so in view of the further finding that Delavan discovered Schneider's perilous position in time to have avoided the collision and Schneider's resulting injuries, notwithstanding the further finding that Delavan did not fail to use those means, which finding was directly contrary to the conceded and obvious physical fact of the collision, and to other findings by the jury, as well.

Appellee insists that the burden was upon Schneider to elicit a direct finding upon the issue of his own contributory negligence, and that by his failure to meet that burden the trial court could, and did, assume Schneider's guilt, as upon a subsidiary issue, and was thereby authorized to, and did, render judgment against him. There is no merit in that contention. That burden rested, as a matter of course, upon appellee, and by failing to meet that burden, he waived any benefit that might have inured to him by a finding against his adversary upon the issue of the latter's contributory negligence.

We would be less justified in giving effect to the claimed implication that Schneider's negligence proximately caused his own injuries, than in giving effect to the patent implication that Schneider's injuries were caused by Delavan running into him after discovering his peril, when, according to the jury finding, he had the means at hand to avoid the accident.

We are of the opinion that the jury findings were too conflicting, incongruous, conjectural, and destructive of each other, to support judgment for or against either party, and that the trial court erred in not setting it aside and ordering a new trial. Barnes Bros. v. International G. N. R. Co., Tex.Com.App., 1 S.W.2d 273; Stiles v. Union Terminal Co., Tex. Civ. App. 1 S.W.2d 947, writ refused; Austin v. McShane, Tex. Civ. App. 289 S.W. 705.

The judgment will be reversed and the cause remanded for a new trial, at the joint cost of both parties.