Pollock v. El Paso Electric Co. , 11 S.W.2d 525 ( 1928 )

WALTHALL, J.

This suit was brought by Robert Pollock and wife, Benita Pollock, against El Paso Electric Company, a street car company, to recover damages for alleged personal injuries to the wife, and damages to an automobile, property of Pollock, and wife, resulting from a collision on East Yan-dell boulevard, between a street car and the automobile then occupied by Pollock and wife, and driven by Pollock.

Defendant answered by general denial and plea of contributory negligence in turning to the left in the middle of the block instead of proceeding to a street intersection to make the turn, and, in turning, failing to pass to the right of and beyond the center of the intersecting street, in violation of ordinances of the city of El Paso, and immediately in front of the approaching street car.

The case was tried to a jury and submitted upon special issues. In response to issues submitted the jury found:

(1) The street car was not being propelled at a great and reckless rate of speed.

(2 and S were to be answered only in tbe event No. 1 was answered in tbe affirmative.)

(4) “Do you find from a preponderance of tbe evidence that defendant’s motorman, after be bad discovered tbe peril or perilous position of the automobile in which plaintiffs were, could, by tbe use of tbe means at band and with safety to tbe street car and the persons thereon, have stopped tbe street car and avoided tbe collision complained of?” Tbe jury answered, “No.”

• (5) Tbe driver of tbe automobile was attempting, or had attempted, to cross to tbe north side of Boulevard street at oy just prior to tbe time of tbe collision.

(6) That plaintiff was so attempting or bad so attempted (as in No. 5) was a proximate cause of the collision complained of.

(7) Tbe driver of tbe automobile was himself negligent in tbe way or manner in which be drove tbe car, or tbe way he kept a lookout, or failed to do so, and that such negligence caused, or contributed to cause, tbe collision complained of.

(8) “What sinn do you find, if paid now, will reasonably compensate tbe plaintiffs for tbe damages proximatély caused by tbe collision complained of?” Tbe jury answered, “Nothing.”

To special questions submitted by defendant: No. 2, a question similar to above No. 4, of tbe court’s main charge, tbe jury answered No. Tbe court, by defendant’s special issue No. 4, submitted to the jury tbe issue of discovered peril. On that issue tbe jury answered that defendant did not discover tbe plaintiff’s automobile upon tbe track, or in close proximity thereto, and realize tbe peril of the automobile and its occupants in time, by the exercise of ordinary care, to use tbe means at band, consistent with tbe safety of tbe street car and its passengers, to prevent tbe collision.

To special questions submitted by defendant the jury answered: Plaintiff did not exercise ordinary care to keep a proper lookout for defendant’s street car, and that such failure was tbe sole proximate cause of tbe collision in question. Tbe jury found that tbe difference between tbe reasonable market value of the automobile before and after tbe collision was $100.

On tbe verdict rendered tbe court entered judgment for defendant.

Opinion.

Plaintiffs assigned as negligence discovered peril, and also alleged that it was defendant’s duty to keep a lookout for persons in perilous positions, and that it was defendant’s duty to prevent injury to persons upon and near to tracks, and that for the failure to do each and any of said duties as alleged defendant would be liable, and that in that connection, if defendant did not see plaintiffs in their perilous position, defendant could and should have done so, and tbe failure to see plaintiffs was negligence, and which failure was tbe proximate cause of plaintiff’s injuries; and again, “in tbe alternative” alleged that, if defendant in tbe operation of its ears, and keeping a lookout as imposed by law, failed to observe plaintiffs, and through such failure ran into plaintiffs, such failure was negligence; and that, as a consequence of the negligence in failing to observe plaintiffs near said street car, or having observed plaintiffs and failing to stop tbe street ear, resulted in tbe injuries, and damages. The above statements of tbe plaintiffs’ pleadings are made in view of plaintiffs’ insistence that “petition alleges a case only upon discovered peril,” and also in view of plaintiffs’, suggestions of error in refusing to give a requested special charge to tbe effect that tbe issue of discovered peril eliminated defendant’s defense of contributory negligence.

Tbe court was not in error in refusing to give tbe requested special charge.

Tbe issues of contributory negligence and proximate cause were pleaded by appellee; tbe evidence was such as to properly call for their submission.

Tbe sufficiency of tbe evidence to support tbe finding on any of the issues submitted is not contested.

The evidence failed to raise tbe issue of discovered peril, and tbe plaintiffs’ own testimony shows contributory negligence as a matter of law, and that such negligence, excepting therefrom discovered peril, necessarily was tbe proximate cause of tbe injuries complained of.

Appellants complain of some minor matters occurring during tbe trial of tbe case, but, in view- of tbe uncontroverted evidence, and tbe findings of tbe jury thereon, tbe controlling issues in tbe case, and not affected by the matters complained of, such errors, if errors, are not reversible errors.

Tbe case is affirmed.