Rosenthal Dry Goods Co. v. Hillebrandt

^* Writ of error granted February 1, 1923. This was a suit by appellee against appellant for damages for personal injuries, resulting in a judgment in her favor for $5,000. She alleged that on or about the 16th day of October, 1920, while driving her horse and buggy down Highland avenue towards the business section of the city of Beaumont, one of appellant's trucks collided with her buggy, overturning it, and inflicting upon her serious bodily injuries. She further alleged that she was driving on the right-hand side of the street to the right of the middle, and was exercising due care for her own safety. She alleged nine specific acts of negligence against appellant, which are set out in her own language in our opinion upon the former appeal of this case (Rosenthal Dry Goods Co. v. Hillebrandt, 280 S.W. 882), to which we hereby refer and adopt as a part of our statement of the case. Upon this trial only two acts of negligence were submitted to the jury, (a) the driving of the truck on the wrong side of the street, and (b) the driving of the truck without lights. These issues were submitted separately, and each found by the jury to be negligence. The first was found to be the proximate cause of appellee's injuries, and the second was found to be a proximate cause.

We sustain appellant's first proposition that the driving of the truck on the wrong side of the street was not pleaded by her as actionable negligence. She specially pleaded the nine acts as set out in our original opinion, but no one of these, by any construction however liberal, can involve the driving on the wrong side of the street as a proximate cause of her injuries. On oral submission she did not contend that this issue was involved in her nine specific allegations, but read to us and relied upon the introductory paragraphs of her petition, wherein she pleaded the conditions surrounding the accident. In stating the conditions of the accident, she pleaded facts showing that appellant's truck was on the wrong side of the street when it struck her buggy; that is, she pleaded she was on the right-hand side of the street, to the right of the center line, and while so driving was struck by appellant's truck. But she did not specially plead that the driving of the truck on that side was negligence and a proximate cause of her injury. This pleading was nothing more than an explanation of conditions surrounding the accident. The conditions of an accident can constitute actionable negligence only by pleading facts showing that such conditions were negligence, and that such negligence was a proximate cause of the injuries complained of. To show negligence was the burden assumed by her, and it is well settled that a plaintiff cannot recover upon grounds of negligence not alleged. We said this upon the former appeal, as it had already been said times without number.

But this proposition does not constitute reversible error, since the judgment has full support in the finding that the driving of the truck without lights was negligence, and that such negligence was a proximate cause of appellee's injuries. Appellant attacks this finding of fact by saying it is without support in the evidence. The finding is supported. The evidence showed it was dark enough for appellee to carry a flash light in her left hand for her protection and that of the other users of the street. It is true that she said she saw appellant's truck 50 or 100 feet before it struck her, saw it was on the wrong side of the street, and had time to pull her horse as far to the right as he could go. But it was for the jury to say whether had the truck been lighted the driver could have seen and avoided striking her, or whether had the lights been burning on the truck she could have seen it in time to take other steps for her protection. Under the facts, negligence in driving the truck without lights was clearly an issue for the jury. But even if negligence, appellant says it could not, in law, be a proximate cause of the injuries complained of. Its proposition on this point is:

"Under the facts of this case, it is not possible for two proximate causes to exist, since the existence of one dominant cause precludes the other question, in so far as the term `proximate cause' is concerned."

When an injury is the result of a series of concurring causes, we do not understand that the proximate relation of one of the causes can be destroyed on the ground that another of the series is dominant. The law is that no matter how insignificant the cause may be in contrast with other concurring causes, if it is an efficient cause contributing to the injury, and if without its operation the injury would not have occurred, and if a reasonably prudent man, in view of the facts, would have anticipated the result, it is a proximate cause. There may be one or several contributing causes to an injury. Where several causes are pleaded as proximate causes, plaintiff has established a cause of action as to each cause pleaded, when the proof shows it contributed to the injury, and without its operation the injury would not have occurred, and its consequences ought to have been foreseen. Great West Mill Elevator Co. v. Hess (Tex.Civ.App.) 281 S.W. 238; Railway Co. v. Wilkes (Tex.Civ.App.) 159 S.W. 126.

The trial court made the following submission of the issue of "unavoidable accident":

"Do you find from a preponderance of the evidence in this case that the collision of two vehicles in this case was the result of an unavoidable accident?"

— to which the jury answered "No." This charge was error, in that it put the burden of proof upon appellant. The burden to show that the accident was caused by appellant's negligence, and not as a result of an unavoidable accident, rested upon appellee. Railway Co. v. Washington,94 Tex. 510, 63 S.W. 534. But the giving of this charge was not reversible error, since the issue was not in the case. To restate the facts: On the evening of the 16th of October, 1920, appellee was driving her horse and buggy down Highland avenue towards the business section of the city of Beaumont. It was dark. She had a flash light in her left hand, holding it high enough to throw the light beyond her horse's head, thereby affording protection both to her and other users of the street. She was driving in a fast trot on the right-hand side of the street, to the right of the center. She had passed two or three cars without lights, and her horse required care to keep him on the right side of the street. While thus driving she saw appellee's truck approaching about 50 or 100 feet away, without lights, and on the wrong side of the street. To avoid the truck she pulled her horse as far to the right as possible, but the truck continued on the wrong side of the street at a speed slightly faster than that of her horse, striking her buggy, turning it over, and inflicting upon her the injuries sued for. It requires no analysis of these facts to sustain this conclusion, in view of the principle announced in Traction Co. v. Craig (Tex.Civ.App.) 250 S.W. 733, and followed by us in Eastern Texas Electric Co. v. Hunsucker (Tex.Civ.App.)280 S.W. 887, and Russell v. Bailey (Tex.Civ.App.) 290 S.W. 1112.

The proof showed that the truck bore appellant's name, and immediately after the accident the driver was standing on the ground near the truck. Under circumstances constituting a part of the res gestæ, he said he was delivering a package. Mr. Rosenthal testified that complaint was made to him, and the next morning after the accident he examined the truck and found the lights all right and no indication of a collision. He said he had a negro boy driving this truck, whose duties were to deliver packages. This boy died previous to the trial of this case. The following proposition from Wright v. Maddox (Tex.Civ.App.) 288 S.W. 560, sustains the jury's verdict:

"The general rule is that the burden of proof is on the plaintiff to show that the party causing the injury was at the time acting within the scope of his duties as servant of the defendant.

"When, however, it is shown that defendant owned the automobile, and the party using it was in his employ under duties generally as driver, this burden has been fully met, and the burden of procedure, as it is sometimes called, is then shifted to defendant to show a state of facts which would relieve him of liability. Studebaker v. Kitts (Tex.Civ.App.)152 S.W. 464 (writ of error denied); Floral Co. v. Sheridan (Tex.Civ.App.) 245 S.W. 467."

The statement we have made of the facts shows that the issue was raised in appellee's favor that she was not guilty of contributory negligence, and the facts are sufficient to sustain the verdict of the jury acquitting her of this charge.

Finding no errors in the trial of the case, the judgment of the trial court is affirmed.