Riley v. Fisher , 1911 Tex. App. LEXIS 799 ( 1911 )

PRESLER, J.

This suit was filed in the district court of Hemphill county October 15, 1910, by Thomas Riley, as next friend of the minor, Thomas Carleton Shaw to recover damages for the death of said minor’s father alleged to have been caused by the negligent operation of an automobile by the minor child of W. D. Fisher, defendant; and the trial, which was before a jury, resulted in verdict and judgment for defendant, and appellant, plaintiff below, duly appeals to this court, and here asks that said-judgment be reversed and remanded upon the errors assigned.

The original petition charged, among other things: That Thomas Carleton Shaw is the only surviving beneficiary of his deceased father, Charles C. Shaw. That on or about August 26, 1910, defendant negligently placed in the possession of his minor son, Clancy, an automobile which was dangerous to travelers, and started said Clancy upon performance of an errand for defendant, upon a public road running southeasterly from the town of Canadian, about 60 feet wide, fenced in upon each side, and about half a mile from said town, said Clancy, driving said automobile, met Charles C. Shaw, father of the minor plaintiff, seated upon a wagon, attached to which he was driving a four-horse team consisting of one pair of horses and one pair of mules, well broken and gentle, the said wagon loaded with wheat. That said Clancy negligently approached said team at a rapid rate of speed, frightening said team, and continued to approach said team after their fright became reasonably, apparent, causing them to become still more frightened on account of which said team became uncontrollable and turned in the opposite direction to escape from said automobile, and threw plaintiff’s father to the ground, seriously and fatally injuring him, from which he died. By the several paragraphs of said petition several distinct phases of negligence were presented as defendant’s child drove the automobile at such a rapid rate before slowing down and with so much noise and loud and frightful sounds after slowing down, if he did slow down at all, as to frighten said horses and to cause said death; (2) that the defendant was negligent in permitting said minor to operate said automobile upon defendant’s errand by reason of the tender years of said minor, because defendant knew that his son was too young to operate the same with safety, and was inexperienced in the management and control of automobiles, and did not have the strength and shill to operate the same safely and was reckless and careless in the management thereof, which was a proximate cause of the injury; (3) that defendant’s son was at such time operating said automobile upon the public road at a greater speed than was reasonable and proper, in violation of his duty under the, law. Defendant filed his original answer December 13, 1910, consisting of certain exceptions, general denial, and plea of not guilty and a special answer, setting up contributory negligence and assumed risk in general terms, followed by a special plea that decedent failed to put up his hand or give other visible sign to bring the automobile to a stop under the act of 1907. Plaintiff on December 26, 1910, filed a first supplemental petition, in which he demurred generally to the answer, and urged the following special exceptions: (1) That the plea of contributory negligence was insufficient in law. (2) That said plea failed to point out the particulars in which decedent might have been guilty of contributory negligence. (3) That the plea of assumed risk was insufficient in law. (4) That said plea of assumed risk failed to point out the matters and particulars in which decedent might have assumed the risk. And also plaintiff specially alleged in said supplemental petition that decedent was not guilty of any negligence or assumed risk because said decedent used all possible diligence to avoid injury, but the automobile bore down upon him with such swiftness and so instantaneously that by the highest prudence he had no time except to try to control said team with the lines, and when the automobile drew near, without previous warning, it emitted loud explosive sounds, so unexpectedly as to frighten said team more seriously and so suddenly that decedent could do nothing to lessen the danger; that Clancy Fisher became aware the horses were frightened in time to have stopped said sounds, but nevertheless continued to approach and make said sounds, when there was no excuse, occasion, or necessity therefor. Plaintiff also filed a second supplemental petition, in which he alleged that the public road where the accident occurred was by reason of a wire fence on one side and an embankment on the other about 10 steps wide, and that it was negligent for Clancy Fisher to approach so near to said team, because there was insufficient room to pass, and that, if any other parties as passengers directed such approach, then such parties were the agents of defendant, and for their negligence defendant would be liable.

[■1] In order to entitle appellant to recover in this cause, it was incumbent upon him to establish by a preponderance of the evidence to the satisfaction of the jury (1) that Clancy Fisher, the driver of the machine, was negligent, as alleged in appellant’s pleadings, in the manner and mode of handling the automobile at the time of the injury, and that such negligence was the proximate cause of the injury; and (2) that under the allegations of appellant’s pleadings and the law applicable thereto appellee (W. D. Fisher) was liable for such negligence and the injury resulting therefrom.

[2] From an extended examination of the decisions of this and other states, we conclude that it is now well settled by all the courts that automobiles are lawful modern modes of travel and convenience, and that they have the same right upon the public highway as any other means of conveyance, and that liability for injury occurring by their use to other travelers of the highway does not attach because of the character of the machine per se as being a dangerous device of locomotion, having a tendency to frighten animals using the highway,- but that, in order to establish such liability, negligence in the use and operation of the machine must be shown. The conceded right of owners of automobiles to use the public highways in common with owners of other means of travel is impliedly shown by the act of the Legislature of this state approved April 15, 1907 (page 194), the act, in substance, among other things providing that automobiles should not be driven along highways in Texas at a greater rate of speed than 18 miles per hour, that the driver of such machine should at the request or signal, by putting up the hand or by other visible signs from a person riding or driving a horse, or horses, cause such machine to come to a standstill as quickly as possible, and to remain stationary long enough to allow such animal to pass, and further providing that any person violating any of the provisions of said act upon conviction thereof shall be fined not less than ?5 nor more than $100. Many of the other states have enacted similar laws regulating the use 'of the public highways by automobiles for the purpose of insuring, as far as possible, the safe and proper use of public highways by such machines. Berry on Automobiles, pp. 19-22, inclusive, and eases cited. In the case of Patton-Worsham Drug Company v. Dreenon, 123 S. W. 707, the Court of Civil Appeals for the Fourth District, in our opinion, announced the proper rule with reference to the mutual use of the public highways by owners of automobiles and the users of horses in the following language: “In all human activities the law keeps up with the improvement and progress brought about by discovery and invention, and in respect to highways, if the introduction of a new convenience for transportation purposes, conducted with due care, is met with inconvenience and incidental injury to those using ordinary modes, there can be no recovery, provided the contrivance is compatible with the general use and safety of the road. * * * It is improper to say that the driver of the horse has rights in the road superior to the driver of the automobile. * * * Both have equal right to use the easement, and each is equally restricted in the exercise of his rights by the corresponding rights of the other. Each is required to regulate his own use by the observance of ordinary care and caution to avoid receiving injury, as well as inflicting injury upon another. * * * And, when accidents happen, as incident to reasonable use and reasonable care, the law awards no redress.”

Upon a thorough and careful investigation of the entire evidence, as disclosed by the record in this case, we are of the opinion that the same shows no such negligent and careless handling and use of the machine upon the occasion of the injury as would warrant the jury in returning a verdict holding the appellee liable for damages in any sum, had the appellee, W. D. Fisher, himself been the driver of the machine on said occasion. It appears to us that the machine W’as handled and operated with all the care and caution to prevent either inflicting or receiving injury required by the law under the conditions obtaining at the time. It appears from the undisputed testimony that the machine before the occurrence of the accident did not approach nearer than 31 steps to deceased’s team, and by a great portion of the evidence did not in fact approach closer than 50 steps, and that upon it becoming apparent to the driver of the machine, Clancy Fisher, that the deceased could not control his team, he, Clancy, immediately stopped the machine; that upon it first becoming apparent to the driver of the machine that the deceased’s team was scared or becoming so, he at once slowed down and proceeded in the further approach made by him in a very cautious manner; that the deceased never at any time gave the driver of the approaching automobile, either in the. manner prescribed by the statute, to wit, raising his hand, or in any other way, notice that he was unable to control or thought himself unable to control, his team, and that the auto should stop, until he could pass with his team. Nor do we believe from the evidence that the driver of the machine had cause to think, or did think, that the deceased could not control his team until after the occurrence of the accident, the evidence showing that deceased appearing to lose control of his team and the overturning of the wagon were almost simultaneous.

We therefore conclude that upon the state of the proof as submitted to the jury appellant’s allegations of negligence were not sustained, and that there was no error in the verdict and judgment rendered in favor of appellee. Under this view of the case, we find no reversible error assigned by appellant under the assignments of error set forth in his brief or either of them, and conclude that the judgment appealed from should be in all things affirmed; and it is accordingly so ordered.