text:
    TEXAS STEEL CO. v. ROCKHOLT.
    No. 5541.
    Court of Civil Appeals of Texas. Texarkana.
    June 19, 1940.
    Rehearing Denied July 11, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort W.orth, and Stinchcomb, Kenley & Sharp, of Longview, for plaintiff in error.
    Jones & Jones and C. A. Brian, all of Marshall, for defendant in error.
   HALL, Justice.

This is a suit for damages instituted by W. F. Rockholt, defendant in error, against Texas Steel Company, plaintiff in error, for personal injuries to Mrs. Rockholt alleged to have been caused by the negligent acts of plaintiff in error’s agent in the operation of one of its cars. The parties hereto will be referred to hereafter as in the lower court, Texas Steel Company as defendant and Rockholt as plaintiff.

It was alleged by plaintiff that on November 23, 1936, on the highway between Gladewater and Gilmer at a point about seven miles north of Gladewater, plaintiff and certain other persons were traveling in their cars in a northerly direction on the right or east side of said highway; that defendant’s agent operating one of its automobiles passed plaintiff’s car in which he, his wife, and other persons were riding, and in the act of passing “pulled his car directly in front of the one driven by plaintiff, and brought it to a sudden stop, or suddenly or materially reduced the speed of said vehicle, directly obstructing the highway in front of plaintiff and those riding in the car with him. That plaintiff immediately applied the brakes on the car which he was driving in an attempt to keep from striking the car which had been negligently and carelessly driven in front of him by the defendant, acting by and through its agents, servants, and employees, and that due to the sudden obstruction of the highway in front of plaintiff by defendant’s automobile, plaintiff’s car became uncontrollable and turned over and into the ditch on the left side of the highway in the direction in which plaintiff was going, and that in doing so Mrs. Bertha Rockholt, being a young woman of about twenty-five years, wife of the plaintiff herein, was severely and permanently injured.” Plaintiff alleged further that defendant was guilty of negligence in the following particulars: (1) In attempting to pass a string of cars while approaching a hill, without sufficient space or clearance, when proceeding at a reasonable rate of speed, to pass said cars in safety, in violation of the penal laws of this state; (2) in traveling at a greater rate of speed than forty-five miles per hour in violation of the penal laws of this state; (3) in operating said car so as to obstruct the highway in front of plaintiff, thereby causing plaintiff to drive his car “in such manner as to keep from striking the car of defendant, and forcing plaintiff to apply his brakes, the roads being then and there -wet and slick, causing the injuries hereafter complained of”; (4) in operating its automobile so “as to force or crowd automobiles situated as was plaintiff’s off the highway” with knowledge of the condition of the highway at the time and that said act would cause serious bodily injury or death; (5) in operating “said car in a careless and negligent manner considering the condition of the highway * * *”; (6) in negligently and carelessly passing and attempting to pass plaintiff’s car on a hill in violation of the penal laws of this state. In the alternative, plaintiff alleged that if such acts or omissions set out above be not penal in their nature, then they each constituted negligence on the part of defendant which was a proximate cause of the injuries complained of. In addition to the claim for damages for the alleged injuries to Mrs. Rockholt, plaintiff sought damages for the wrecking of his car in the net sum of $90, and for medical bills incurred by Mrs. Rockholt.

Defendant in its answer, in addition to general and special exceptions and general denial, alleged that plaintiff was guilty of contributory negligence: (1) In speeding up his car after being passed by defendant’s agent, and “attempting to drive as close to the car of defendant as possible,” with knowledge of the slick and wet condition of the road; (2) in jamming on his brakes “thereby forcing his car to skid on the wet, slick road and which resulted in plaintiff’s car turning over;” (3) in failing to use proper care in handling his car to avoid turning it over, “after observing the conditions surrounding the turning over of defendant’s automobile;” (4) in failing to keep a proper lookout, and to keep his car under control considering the wet and-slick condition of the highway. Defendant also alleged that the accident to plaintiff, was unavoidable and not the result of defendant’s negligence. By supplemental petition plaintiff denied generally and specifically the allegations in defendant’s answer, and says if he be mistaken in the distance between plaintiff’s and defendant’s cars immediately before the wreck, “nev- - ertheless his (plaintiff’s) action in applying his brakes was one in emergency brought on under the existing circumstances” and that he exercised ordinary care in acting under said emergency.

Trial was to a jury on special issues, and in answer thereto the jury found: (1) That the operator of defendant’s automobile after passing plaintiff’s car drove to the right at a time when the highway was not reasonably clear of plaintiff’s car; (2) that the driver of defendant’s automobile suddenly reduced its speed after passing plaintiff’s car in such manner as to obstruct the highway in front of plaintiff; (3) that the driver of defendant’s automobile attempted to pass cars which were approaching a hill when he did not have sufficient space in which to pass said cars in safety. The jury also found that these acts of the agent of defendant were each negligent and each constituted a proximate cause of Mrs. Rockholt’s injury. The jury absolved plaintiff of all acts of contributory negligence charged against him. The jury also answered that the accident was not an unavoidable one; and, lastly, that the plaintiff acted in an emergency in applying his brakes immediately before the accident. Upon these findings judgment was entered for plaintiff.

Propositions 1 and 2 relate to the action of the lower court in refusing to instruct the jury to return a verdict for defendant, the contention being that the evidence wholly failed to establish any negligent act, either of omission or commission, charged against defendant in plaintiff’s petition, and that “the uncontradicted evidence shows, as a matter of law, that the damages sued for by plaintiff was caused by and resulted from an unavoidable- accident or caused by and resulted from the negligent act of the plaintiff himself.”

The evidence on behalf of the plaintiff was to the effect that his car and three other cars, including defendant’s, were traveling along the highway between Glade-water and Gilmer in a northerly direction on the east or right-hand side of the highway, at the time plaintiff’s car was wrecked and Mrs. Rockholt received her injury, in the following order: The front car (the one farthest north) was a Model1 T Ford, and some four or five car lengths behind it was plaintiff’s car. About the same distance behind plaintiff’s car was the witness Lively’s car, and the fourth or last car in line was defendant’s; that the road at the place of the wreck is practically straight, with a slight curve ahead at top of the rise to the north. Plaintiff’s evidence also shows that defendant’s car passed Lively’s and plaintiff’s cars immediately before the wreck and at*a point at or near the beginning of an incline; that after defendant’s car had passed plaintiff’s, both cars (plaintiff’s and defendant’s) began skidding and slipping, each turning over and coming, to rest on the left-hand side of the highway dump; that the defendant’s car was resting about 120 feet north of plaintiff’s car. Plaintiff’s evidence also showed that defendant’s car when it passed plaintiff’s was traveling at a speed of 35 or 40 miles an hour. The witness Lively who was travel-, ing two or three car lengths behind plaintiff’s car, testified that defendant’s car went around plaintiff’s car “and just did do so. I mean he just barely passed the Rockholt’s (plaintiff’s) car.” ' This witness testified further that defendant’s car “directly” after passing plaintiff’s car began skidding from right to left and immediately plaintiff’s car began skidding. Plaintiff himself testified:

“Q. All right, after this car (defendant’s) got abreast of you, did he go on pass? A. Yes, sir, he went on pass me just out — ahead of me.
“Q. And then what did you do? A. Well, he turned in, come in toward the right-hand side of the road.
■ “Q. About how far ahead of your car would you say he was when he turned in back to the right-hand side of the road, or cut in, as I used the expression? A. Somehow I couldn’t judge distances just exactly in feet, but he was awful close-—
“Q. Did he get clear back to the right-hand lane? A. Approximately .in the right-hand lane.
“Q. Approximately, you mean his car was closer to the center of the road than you were ? A. Yes,, sir, closer to the center of the road than I was—
“Q. Now as Mr. Clampitt (driver .of defendant’s car) cut in, did you notice any unusual motion of his car or anything unusual about the back end of it? A. Well, the thing I noticed unusual was the tail light flashing.”

' Plaintiff testified further that defendant’s car began to skid when the tail light flashed, the rear end skidding to the left and the front end to the right; that at this time he (plaintiff) put his brakes on hard without thinking of the slick road. After the tail light flashed plaintiff testified he put his brakes on “awfully instant;” that he did nothing else after defendant’s car' began to skid but put on his brakes, that was all he could do; that he, plaintiff, lost control of his car and continued skidding until he went into the ditch. On cross-examination plaintiff testified further:

“Q. And no part of his (defendant’s) car was making any sort of barrier to keep you from going straight on if you hadn’t put your foot on the brake? A. There wasn’t anything there to cause it after he turned over.
“Q. After you saw his car first start to skid and seeing the back end swerve, you could see the side of the road was clearing out for you? A. No, sir; if I had waited there long enough I guess he would have gotten out of the way.”

Mrs. ■ Rockholt’s testimony as to what happened immediately before and at the time of the wreck, reduced to narrative in defendant’s brief, in substance is: “We were on our right-hand side of the road. That other (defendant’s) car came around us and came just right up close to us as it came around and it never got directly on the right side of the road. The right fender was about even with our left fender, was as near as it got in front of us. It did not get in front of us at that time. After the car passed us it was pretty close to us. The car that passed us never did check speed. Came in there almost in front of us and pulled up even with our car and the brake lights flashed and it began skidding. I don’t know as I can exactly remember how it skidded because it excited me just a little as it came around us and driving at the speed and the action of the car and all, but I know it skidded, and it attracted my attention because of those things. I don’t remember just exactly how it started skidding but I know the first thing I noticed it was cross-ways of the road. If we had proceeded right on as we were going, we would have either hit the car that was cross-ways or the car that had been in ahead of us on the right. The best I remember the car that had been in front of us all the time was just maybe barely ahead of the car that was skidding. It was red clay on the road outside of the pavement off the road. It was rainy, cold,, damp weather.” There is no contention that the wreck was caused by defendant’s car striking any part of plaintiff’s car. It is undisputed that at the time of the wreck it was misting rain and the pavement was wet and slick.

It is a well-settled rule in this state that a verdict should not be directed for defendant, “if, discarding all adverse evidence, and giving credit to all evidence favorable to plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the .plaintiff.” Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150; Jackson v. Langford, Tex.Civ.App., 60 S.W.2d 265; McLaughlin v. Horn-Allen Co., Tex.Civ.App., 76 S.W.2d 226; Central Motor Co. v. Roberson, Tex.Civ.App., 139 S.W.2d 287; T.J.Vol. 41, p. 949, Sec. 177. Furthermore, negligence, “whether of the plaintiff or defendant, is generally a question of fact.” Lee v. International, etc., Ry. Co., 89 Tex. 583, 36 S.W. 63, 65; Wininger v. Ft. Worth & D. C. Ry. Co., supra. While it is true that the evidence with respect to negligence of both plaintiff and defendant is sharply conflicting, still it is “the province of the jury to reconcile [these conflicts],’if possible; and if this can not be done, then it was their duty to give credit to such of the witnesses as seemed best entitled to it.” Marine Fire Ins. Co. v. Burnett, 29 Tex. 433; Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365; Greenway v. Great A. & P. Tea Co., Tex.Civ.App., 114 S.W.2d 435, and authorities there cited. So, guided by above authorities, we must conclude that the driver of defendant’s car drove' it over a wet and sli.ck pavement, speedily, in front of plaintiff’s car; that he immediately applied his brakes, causing the car to skid in such way as to obstruct the highway directly in front of plaintiff’s car, thereby forcing plaintiff to apply the brakes to his car to avoid striking defendant’s car; that these acts of defendant’s agent detailed above and others in the record of the same import are sufficient to sustain the jury’s finding of negligence and that each of such acts of negligence constituted a proximate cause of the injury to Mrs. Rockholt and the damages attributable thereto. And this is true regardless of whether defendant’s car actually struck plaintiff’s car. Yturria v. Everton, Tex.Civ.App., 4 S.W.2d 211; 5 T.J. 723 Sec. 120. Under the attending circumstances of this record the jury was warranted in finding that the injury to Mrs. Rockholt or some other person similarly situated should have been reasonably anticipated by the defendant’s agent as the direct result of his act in attempting to pass plaintiff’s car at the time and place he did, and under the conditions and circumstances existing at the time. “It is not required that.the particular accident complained of should have been foreseen. All that is required is ‘that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ ” Continuing, Judge Critz states: “In order to constitute the owner and the driver of this truck liable for the injuries sustained by Walter Carey, they did not have to foresee that his injuries would occur in the exact way in which they did occur.” Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847, 849, 850; San Antonio & A. P. Ry. v. Behne, Tex.Com.App., 231 S.W. 354. In Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474, 475, Judge Critz discussing a fact situation similar to the one here, except that the negligent offender in that case is one step further removed in the sequence of events, says:

“On the early morning of January 11, 1931, McLain was returning to his home from his place of employment. In so returning he was walking on the street in question here. When he reached the point where the Railroad's train was blocking the street on which he was traveling, he was compelled to await the removal of the train from the crossing. While McLain was waiting at the crossing in question an automobile approached such crossing, traveling ' in the same direction McLain had been traveling. The party driving the automobile, due to the existing darkness and the bad visibility produced by the fact that the weather was cloudy and misty, did not see the train blocking the crossing until he was within such close proximity thereto as to make it necessary for him to undertake to make a quick and sudden stop on what was then a wet and slippery highway. The driver of such automobile did undertake to make such stop under the conditions named. In undertaking to make such stop the driver of the automobile lost control thereof, so that same skidded and slid, striking McLain and thereby so injuring him that his death resulted therefrom. The driver of the automobile did not lose control of the automobile through any defect in the vehicle itself, but simply because he was compelled to attempt to stop it to avoid hitting the train. The driver of the automobile did not see McLain. At the time McLain was struck he was standing on the street, either on the paved or the unpaved part thereof. * * *
“Under the facts of this record, the jury was justified in concluding that the Railroad was negligent, and that it ought to have foreseen the circumstances attendant upon the approach of this automobile to this blocked crossing. The jury was also justified in concluding that the train crew knew that pedestrians using this street would have to wait at this blocked crossing-until this train was removed. From all this, it cannot be said that the jury was not justified in concluding that the train crew ought to have anticipated that a pedestrian might be injured in the way McLain was injured, or in some similar way.”

These propositions are overruled.

By defendant’s third proposition it is asserted that there is no evidence in this record to warrant the jury’s finding that the injuries suffered by Mrs. Rockholt was not the result of an unavoidable accident; that “all the physical facts and undisputed testimony shows conclusively that it was an unavoidable accident.” What we have said in respect to the sufficiency of the evidence to support the findings of the jury relating to the negligence charged against defendant in discussing propositions 1 and 2 and the'authorities there cited are applicable here. This proposition is overruled.

Defendant’s 4th, 5th, and 6th propositions assert that the jury’s answers to special issues 1 to 9, inclusive, are “wholly without any pleadings or evidence to support them and said findings are' so contrary to the physical facts, the uncon-tradicted evidence and to the great weight and preponderance of the evidence that they should not be permitted to stand as any support or basis for the judgment entered herein. * * *” These issues relate to alleged negligent acts of defendant at the time and place of the wreck and were all answered favorably to plaintiff. The issues, it is true, are not in the exact words of the pleadings, but this is not absolutely necessary. As said by Judge Speer in his work on Special Issues: “It is of course not required that there be literal exactness, but there must at least be substantial identity of agreement. * * * The test is: Does the interrogatory submit the issue pleaded?” Speer’s Law of Special Issues, Sections 179, 180. An examination of the issues in connection with the pleading upon which they are based reveals a substantial compliance with said pleading. The principal difference between the two being that the issues are so framed as better to set forth the ultimate facts sought to be established. Jones v. McIlveene, Tex.Civ.App., 105 S.W.2d 503, writ dismissed; Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153. And the answers to said special issues are amply supported by the testimony with the possible exception of special issue No. 7 and its related issues No. 8 and No. 9. We have our doubts of the sufficiency of the evidence to support the answers to these issues. However, the lower court could, and no doubt did, disregard these answers as being immaterial under the authority of Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090; Schneider v. Delavan, Tex.Civ.App., 118 S.W.2d 823 (on motion for rehearing, 118 S.W.2d at page 825), and based the judgment on the jury’s other findings of negligence. These propositions are overruled.

Propositions 7 and 8 assert that the answers to special issues 10 to 15, both inclusive, are wholly without support in the evidence. These issues relate to the defense of contributory negligence as applied to the acts and conduct of plaintiff at the time and place of the wreck and. were all answered favorably to plaintiff. We have carefully examined the evidence and conclude it amply supports the answers of the jury to said issues. These propositions are overruled.

By propositions 9, 10, 11 and 12, the contention is again made that there were no pleadings or evidence to authorize the submission of special issues 1 to 9, both inclusive, relating to the alleged acts of negligence of defendant and special issue No. 19 relating to unavoidable accident. This contention has already been disposed of adversely to defendant and will not be noticed further. By these same propositions another contention is advanced, namely, “that when taken in connection with the definition in the charge of ‘preponderance of the evidence’ and as meaning ‘the greater weight and degree of credible testimony’ the issues as thus framed and constructed were not only on the weight of evidence but were misleading to the jury and clearly and distinctly placed the burden of proof upon defendant to establish its contentions with reference thereto by a preponderance of the evidence, which was a greater burden than that imposed upon it by law.” The 5th paragraph of the court’s charge to the jury is: “By the term ‘preponderance of the evidence’ as used herein, is meant the greater weight and degree of credible testimony.” Special issue No. 1, which is typical as to form of the others complained of, except No. 19, is: “Do you find from a preponderance of the evidence that the operator of the defendant’s automobile after passing the plaintiff’s car, drove to the right at a time when the highway was not reasonably clear of plaintiff’s car? Answer ‘Yes’ or ‘No’.” Simply stated, the defendant contends that these issues placed the burden on it to establish the negative of said issues by a preponderance of the evidence, which, if true, would certainly present error. However, we do not consider such to be the effect of these issues. In Casualty Reciprocal Exchange v. Berry, 90 S.W.2d 595, 598, writ refused, discussing a special issue identical in form with that set out above, and preceded there, as here, with the definition of “preponderance of the evidence,” we said: “A careful examination of the issues submitted by the court in his charge shows that he placed the burden of proof in each issue on the appel-lee.” In Traders & General Ins. Co. v. Harper, Tex.Civ.App., 140 S.W.2d 593, 596, Chief Justice Johnson of this court, discussing a special issue in form identical with the one above said: “It will here be noted that the trial court’s instructions, directing the jury to answer ‘Yes’ or ‘No,’ to a question naturally required to be so answered, such as above question No. 6, is held not reversible error. Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317 [writ refused]; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W.2d 126; Willis v. Smith, Tex.Civ.App., 120 S.W.2d 899 [writ dismissed].” Strongly supporting the above holding is Texas Employers Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.2d 658, and authorities there cited. We can conceive of no clearer method of submitting a special issue requiring a “Yes” or “No” answer than that expressed in the issue copied above. Special issue No. 19, the one relating to unavoidable accident, was in the form approved by the Commission of Appeals in Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956, and was submitted at a time when that opinion was in full force. This action of the trial court does not present error.- We call attention, however, to the modification of the Richardson case, supra, in Gulf, C. & S. F. R. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795. These propositions are overruled.

Finding no error in this record, the judgment in the court below is in all things affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COMMERCIAL STANDARD INS. CO. v. HAYES.
    No. 25092.
    Supreme Court of Texas.
    Sept. 11, 1940.
    Buck & Knapp and John Snyder, all of Fort Worth, for plaintiff in error.
    George C. Kemble and S. Landford Carlton, both of Fort Worth, and Lillard & Gibbons, of Oklahoma City, Okl., for defendant in error.
   PER CURIAM.

The application for writ of error in this case is refused, because we are of the opinion that there was sufficient evidence to raise an issue of fact as to “good cause” for failure to file claim with the Industrial Accident Board within the statutory period, and the trial court should not have instructed a verdict on that ground. We expressly do not approve the holding of the Court of Civil Appeals on the ground that a minor is not required to file claim with the Board within the statutory period.


author: BROWN, Justice.

text:
    WARNER v. FIRST NAT. BANK OF BOWIE.
    No. 14097.
    Court of Civil Appeals of Texas. Fort Worth.
    May 31, 1940.
    Rehearing Denied Sept. 6, 1940.

      Montague & Fannin, of Fort Worth, for appellant.
    T. B. Coffield, of Bowie, for appellee.
   BROWN, Justice.

This is an appeal from the overruling of a plea of privilege presented by Monte Warner.

The First National Bank of Bowie (Montague County), Texas, brought suit in the District Court of Montague County against Abe Anderson, a resident citizen of said county, and against Monte Warner, alleging that Warner made, executed and delivered to Anderson a certain draft in writing, as follows:

“The San Angelo National Bank, San Angelo, Texas. February 4th, 1930.
“Subject to approval of title by purchaser’s attorney for one-half (1/2) royalty, Section 37, Block Y., T. C. Ry. Survey, Upton County, Texas, pay to the order of Abe Anderson ($9,600.00) Ninety-six Hundred and no/100 Dollars, with exchange. Value received and charge to account of Monte Warner.
“To Monte Warner, San Angelo National Bank, San Angelo, Texas.”

It is alleged that subsequent to February 4, 1930, and on or prior to March 10, 1930, the defendant Abe Anderson transferred and endorsed in blank the above mentioned draft and delivered same to The City National Bank of Bowie, Texas, for a valuable consideration, and said last named bank sent the draft in the usual course of business to The San Angelo National Bank at San Angelo, Texas, for payment, but same was dishonored, and payment thereof was refused, “and the same is to this date in all respects due, owing and unpaid.”

These allegations are followed by those stating that the draft was presented to Monte Warner, to The San Angelo National Bank and to Abe Anderson, and payment was “demanded from each and all of said parties but payment thereof has been in all things denied and refused, and each and all of said defendants had due notice of non-payment thereof.”

There follow allegations to the effect that subsequent to these alleged occurrences the draft and all rights and privileges in and to same were duly assigned to the plaintiff, The First National Bank of Bowie, and prayer is for judgment against Anderson and Warner.

It is the bank’s contention that venue lies in Montague County as against Warner’s plea of privilege for the following reasons:

(1) That Anderson and Warner are jointly liable to the bank, that Anderson is a resident citizen of Montague County, and a joint cause of action is alleged against both the defendants, and venue is controlled by subdivision 29a of Art. 1995, Rev.Civil Statutes, Vernon’s Ann.Civ.St. art. 1995, subd. 29a.

The contention is not good. The bank’s cause of action against Anderson is bottomed on the sale to it of a draft made payable to Anderson which was not paid when presented.

If there could be pleaded a cause of action against Warner, it would of necessity be'bottomed on Warner’s wrongfully refusing to pay the draft.

The draft set out in haec verba in the petition discloses on its face that its payment was conditioned upon “the approval of title by purchaser’s attorney for one-half (1/2) royalty, Section 37, Block Y., T. C. Ry. Survey, Upton County, Texas,” and to plead a cause of action against Warner it was necessary to allege that the attorney approved the title and then Warner refused payment of the draft. This was not done and we hold that no cause of action against Warner was pleaded.

(2) It is next contended that when the suit was instituted Warner was a resident of the State of California, or some other State than- Texas, and was not to be found in Texas, until Warner was served with citation in 1938; that the plaintiff is a National Bank and at all times had its principal place of business in Montague County, in which county the suit was brought, and therefore venue is properly laid in such county under subsection 3 of said Article 1995.

There is no merit in this contention, because the only petition in the record (being the one on which the issue is drawn) is the plaintiff’s Second Amended Original Petition, which was filed “in lieu of all petitions hereinbefore filed,” and it specifically alleges the residence of Warner as “in Dallas County, Texas, where service of citation may be had upon him.”

We do not know, nor can we be advised, as to the contents of the two petitions that preceded the one on which the plaintiff relies, and must rely, insofar as the transcript is concerned, but we do know that Warner was never brought into the case, nor was he ever required to plead or answer until he was served with process under the last filed petition, when he was sued as a resident citizen of Dallas County and served with process under such pleading. So much for the pleadings and their disclosures. But it appears from the Statement of Facts that the Original Petition, filed July 24, 1931, only made Anderson a party defendant and nowhere mentioned Warner, and that the next petition, which was filed June 10, 1933, being unnamed, makes Warner a party defendant and alleges his residence to be in Tonr Green County, Texas.

(3) It is next contended that the suit is brought against two defendants, one of whom resides in Montague County, and therefore venue in such county is laid under subsection 4 of said Article 1995.

But this subsection specifically provides: “The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.”

This draft, if it was payable, and if its payment could have been enforced as against Warner, must of necessity have been through a suit against Warner, and it cannot be successfully contended that such suit could have been maintained by Anderson in Montague County, as against Warner’s plea of privilege, and his as-signee occupies no better position than he.

The following authorities support our conclusions on the points raised: Subsection 4, Article 1995, R.C.S.; Duvall v. Boyer, Tex.Civ.App., 35 S.W.2d 181; 6 Tex.Juri., section 248, page 914, and cases cited; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Sub-section 29a has to do with necessary parties. The Supreme Court definitely concludes, as is shown by the opinion in Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (Com. of App., opinion by Justice Critz, and adopted);

Warner was not a necessary party in the suit against Anderson for the sale by him of a draft, payable to his order, which was not paid. If Warner rightfully denied payment, Anderson would still be liable to the bank, to whom he sold a worthless draft, and there ' is no pleading showing that Warner owes payment.

A plaintiff cannot insert and rely upon a new and different cause of action, in his controverting affidavit, from that disclosed by his petition. Jones v. Caldwell, Tex.Civ.App., 42 S.W.2d 1052, and cases cited.

We observe further that plaintiff’s petition nowhere alleges that Warner is a nonresident of the State of Texas, or that his residence is unknown, and also that plaintiff introduced, no evidence tending to show that it is incorporated or that its domicile is in Montague County.

The plea of privilege put all of those alleged facts in issue and the plaintiff failed to make proof. Stockyards Nat. Bank of Fort Worth v. Alexander et al., Tex.Civ.App., 113 S.W.2d 288.

We do not see the necessity for further statement or authorities.

The judgment of the trial court overruling Warner’s plea of privilege is reversed and the cause is remanded to the district court, with instructions to transfer the suit as to the defendant Warner to the district court of Dallas County.


author: GRAVES, Justice.

text:
    NEHI BOTTLING CO. v. PATTON.
    No. 10987.
    Court of Civil Appeals of Texas. Galveston.
    June 6, 1940.
    Rehearing Denied Aug. 1, 1940.
    Battaile & Burr, of Houston, for appellant.
    Lewis & Ingram, of Houston, for appel-lee.
   GRAVES, Justice.

This statement, adopted by the appellee as being correct, is taken from appellant’s brief: “This suit was brought in the district court of Harris County by the plaintiff (appellee) to recover damages from the defendant for injuries alleged to háve resulted from her drinking of the contents of a ‘Royal Crown R. C. Cola’ bottle, allegedly delivered to one Phillip Ciulla, a retailer of' groceries and soft drinks, by the defendant and purchased by the plaintiff from said Ciulla. The case was tried before a jury on special is- ' sues and "on June 5, 1939, after overruling defendant’s motions for judgment non obstante veredicto and that the jury’s findings in response to the special issues be disregarded,'the Court, upon motion of plaintiff, entered judgment on the verdict in' -favor of plaintiff and against defendant for the sum of $3,000.00, to which action defendant duly excepted. On June 14, ’ 1939, 'defendant filed its original motion for hew trial, and on July 1, 1939, its -amended motion, which was on July 7, 1939, duly presented to the Court and by the Court overruled, to which action of the Court defendant duly excepted, and on the same day in open court gave notice of appeal to this Honorable Court of Civil Appeals.”

Inveighing here against the judgment so rendered, appellant’s first proposition is •this: “Since the evidence raises the issue that at least part of the plaintiff’s physical pain and suffering, if- any, and her lost or diminished capacity to work and earn money, if any, and her doctor and medical bills, if any, were attributable to some liver trouble which existed prior to June 15, 1937, the date of plaintiff’s alleged- injuries, the trial court should have instructed the jury in connection with special is- ■ sue No. 13 relating to damages not to consider nor allow plaintiff anything for physical pain and suffering, nor for lost or diminished capacity to work and earn ¡money, nor for doctor and medical bills, because of so much of the. stomach and digestive ailments that plaintiff had, if any,' which were not an aggravation by her drinking of the contents of the bottle in question, in view of the record showing that defendant duly objected and excepted to said issue because of the absence of such instruction, and duly requested the submission of such instruction to the jury.”

The trial court’s special issue No. 13, so referred to in the quoted proposition, together with the jury’s seriatim answers to the inquiries contained, were these:

“Special Issue No. 13.' What sum of money, if any, do you find from a preponderance of the evidence,- if paid now, in cash to the plaintiff, Gladys Patton, will, fairly and adequately compensate her for the injuries, if any, received by her on the occasion in question, directly and proximately resulting from drinking of the contents of the bottle of Royal Crown RC Cola, in question, taking into consideration the following elements of damage, if any you find, and none other.” Answer: “$3,000.00.”
“A. Physical pain and suffering to the plaintiff, therefrom, if any, from the 15th of June, 1937, down to the date of this trial.” Answer: “Physical suffering, $1500.00.”
- “B. The reasonable value of plaintiff’s lost or diminished capacity to work and earn money therefrom, if any, from June 15th, 1937, down to the date of this trial.” Answer: “Diminished capacity, $1000.-00.”
“C. The reasonable value of necessary Doctor bills and medical bills incurred by the plaintiff therefrom, if any, from June 15, 1937, down to the date of this trial.” Answer: “Doctor bills, $500.00.”
“You will answer this issue by stating the amount in dollars and cents, if any, separately as to the above items, if any.”

The appellant’s objection to such issue as given, together with its own requested special issue No. 1, for submission in connection with it, was as follows:

“Defendant objects and excepts to special issue No. 13 because the evidence raises the issue that at least part, if not all, of the plaintiff’s physical pain and suffering, if any, and her lost or diminished capacity to work and earn money, if any, and her doctor and medical bills, if any, were attributable to some liver trouble which existed prior to June 15th, 1937, and the Court should instruct the jury in connection with special issue number thirteen not to consider nor allow anything for physical pain and suffering, nor for lost or diminished capacity to work and earn money, nor for doctor and medical bills, because of so much of the stomach and digestive ailments that plaintiff had which were not an aggravation by her drinking of the contents of the bottle in question; and such instruction is here and now requested.”
“You are instructed in connection with this special issue No. 13 not to consider nor allow anything for physical pain and suffering, nor for lost or diminished capacity to work and earn money, nor for doctor and medical bills, because of so ipuch of the stomach and digestive ailments, if any, that plaintiff had which was not an aggravation by her drinking of the contents of the bottle in question.”

The learned trial court both overruled the stated objection, and refused the requested special, instruction.

, This court has carefully examined the evidence relating to that feature of the cause, and finds, without undertaking either to detail or to make a résumé thereof, that it does, as the quoted proposition asserts, at least raise an issue-of-fact over whether or not some portions of the ap-pellee’s pain and suffering, as well as of her lost or diminished earning capacity, and her medical expenses, thus found by the jury to have resulted to her, were each reasonably attributable to an old liver-trouble which she had been afflicted with prior to June 15, 1937, the date on which she was found, under other issues submitted, to have drunk a portion of the bottle containing “Royal Crown ‘RC’ Cola”; indeed, it is not this court’s understanding that the appellee herself seriously contends the evidence did not raise such an issue, her answer to the quoted proposition being based upon other considerations — the main one being this: “Since the court charged the jury in special issue No. 13, to take into consideration certain legitimate facts, which go to her injury, and stated to the jury that they should take into consideration these facts, and none other, the court so limited the recovery that it would be impossible for the jury to take into consideration any fact which was not a legitimate ground for recovery.”

Wherefore, upon a practically uncontro-verted record in so far as constituting a predicate for it is concerned, the question is thus posed for this court as to whether the trial court erred in the circumstances, either in not heeding such objection, or in not appending such request, to special issue No. 13.

Upon consideration of the question, it is determined that the ’Supreme Court’s very recent refusal of a writ of error in Texas Coca Cola Bottling Co. v. Lovejoy, 138 S.W.2d 254, by the Eastland Court of Civil Appeals, with a divided bench, has already foreclosed the inquiry in appellant’s favor, upon a state of facts not in legal effect different from those so existing here.

This precise question was also fully discussed and determined the same way by the Eastland court in its preceding holding in Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074, writ of error likewise refused; the Supreme Court itself had, slightly before its refusal of the writ in the Lovejoy case, made a similar holding, on analogous facts, in Dallas Ry. v. Ector, 131 Tex. 505, 116 S.W.2d 683. There are a number of other appellate-decisions of like purport, but it is deemed surplusage to cite them here.

As this court interprets them, the gist of the authoritative holdings in the cases cited, supra, upon substantially this same question, is to the effect' that, in such an instance, where the plaintiff, as this one did, sues alone for damages for personal injuries flowing from the negligence of the defendant (in this instance being responsible for this appellee’s drinking the injurious contents of the bottle of Coca Cola), and where, as defensive matter, the defendant adduces evidence tending to show that the injuries so declared upon might in fact have also flowed to some extent from a pre-existing physical infirmity of the plaintiff, the latter constitutes an improper element of damages; that, as such, it is neither a part of the declared-upon cause of action, nor indeed of the defense,thereto, hence is not a material issue for submission to the jury; but that, since the evidence, though without express pleading thereof, tends to show that, potentially, at any rate, the injuries flowing from the prior infirmity and those from the negligence of the defendant have become so closely connected and intermingled that the jury might become confused and allow some damage for the improper element of prior infirmity, such element should be excluded in the manner directed by the Ector and Pedigo cases, supra; that is, such improper element must be expressly excluded, and, to quote from the Ector opinion, 116 S.W.2d at page 685, column 1: “* * * the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence.”

It is true that, as in the Lovejoy case, this jury found, in answer to special issue No. 12, that the appellee’s physical ailments were not due solely to disease existing prior to June 15 of 1937; but the Supreme Court there held that such a finding [138 S.W.2d 254] “does not constitute a cure for the matter here complained of” — to-wit, the injection of injuries caused by pre-existing disease with those proximately- resulting from appellant’s alleged negligence.

Neither does the inclusion by the trial court, in special issue No. 13, of the phrase, “and none other”, so relied upon by the appellee, separate the wheat from the chaff here — in that, it does not split any one of these three given elements into the two constituent parts all are susceptible of being composed of, under the evidence referred to.

It follows from these conclusions that the judgment should be reversed and the cause remanded for another trial; since the other questions discussed in the briefs may not again arise, they will not be further disposed of.

Reversed and remanded.


author: JACKSON, Chief Justice.

text:
    HINDS v. BIGGS.
    No. 5166.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1940.
    Rehearing Denied July 1, 1940.

      Joseph H. Aynesworth and K. H. Dally, both of Borger, for appellant.
    H. H. Cooper, of Amarillo, for appellee.
   JACKSON, Chief Justice.

The record shows that the Pharis Oil Company, a Texas corporation, owned an oil and gas lease on certain land, hereafter described, situated in Hutchinson County, Texas. E. R. Biggs and C. M. Humphrys were the owners of all the capital stock of said corporation save and except a nominal share owned by L. B. Cox. The Pharis Oil Company, acting by its president, E. R. Biggs, its vice president, C. M. Humphrys, and its secretary, L. B. Cox, called first party, and E. R. Biggs and C. M. Humphrys as individuals, designated as second parties, entered into a contract on December 26, 1929, with Clem Hinds, called third party, the terms and provisions of which material to a disposition of this appeal are as follows:

“Whereas, first party is the owner of a certain oil and gas lease upon the following described lands, to-wit:
“The Northwest One-Fourth (NW^4) of the Southwest One-Fourth (SW14) of Section Fourteen (14), Block Y, in Hutchinson County, Texas, together with the personal property now located upon said lands, and
“Whereas, first party and second parties desire to sell and third party desires to purchase the same upon the terms and 'conditions as hereinafter set forth.
“Now, therefore, for and in consideration of the sum of Thirty Five Thousand .and Ten ($35,010.00) Dollars paid and to he paid as follows, to-wit: the sum of Ten ($10.00) Dollars cash, the receipt whereof is hereby confessed and acknowledged by parties of the first and second part, and the further sum of -One Thousand ($1000.00) Dollars on or before February 1, 1930, and a like amount on the first of each month thereafter, together with interest at the rate of Eight Per Cent (8%) per annum upon each of said payments, the interest upon the first twelve monthly instalments being payable as each of said instalments mature, and the interest upon the amount of principal remaining unpaid thereafter being payable at the expiration of said twelve months period.
“For the purpose of buying additional equipment and furnish labor necessary to equip said lease with needed improvements, first and second parties agree that they will furnish the sum of Two Thousand ($2,000.00) Dollars, and which sum to be advanced by first and second parties shall be not to exceed the sum of One Thousand ($1,000.00) Dollars during the month of January, 1930, and not to exceed ■the sum of One Thousand ($1,000.00) Dollars during the month of February, 1930. In the event the full sum of Two Thousand ($2,000.00) Dollars is not required for the placing of said lease on a profitable 'basis, then the said first and second parties will credit the notes of the third party for the. difference between the said sum of Two Thousand ($2,000.00) Dollars and the amount necessary or used by third party in placing said lease on a profitable basis.
* * *
“When third party shall have paid or caused to have been paid to first and second parties the sum of Seventeen Thousand Five Hundred ($17,500.00) Dollars, together with all accumulated interest thereon, first .and second parties agree that they will deliver to third party a good and merchantable title to said above described property, and for that purpose will .execute to said third party, or his nominee, such conveyances and assignments as shall" be necessary to invest said party with good and merchantable title to said property. * *' *
“The conveyance herein provided for shall be made subject to the One-eighth royalty interest due the land owner, and subject to the balance due to first and second parties in the sum of Seventeen Thousand Five Hundred ($17,500.00) Dollars, and which sum shall be secured by a vendor’s lien, chattel mortgage lien 'and other lien necessary to assure and secure the prompt payment of the balance due under the terms of this contract; * * *
“It is further understood that any and all equipment of any and every kind placed upon said lease by third party shall become a part of the property and the superior title thereto shall remain in first and second parties until the sum of Thirty Five Thpusand ($35,000.00) Dollars agreed to be paid herein shall have been paid in full; third party shall not permit any lien, or liens, of any nature to be placed against said premises or any part thereof, and in no event shall the said first and second parties be or become responsible for any sum, or sums, for labor, supplies, taxes or any other item except the sum of Two Thousand ($2,000.00) Dollars as above provided for.
“In the event third party shall default in the performance of any of the terms and conditions as herein provided, then and in that event all right conveyed or contracted to be conveyed to said third party in and to said prémises shall cease and terminate, and first and second parties shall have the right to re-enter and' repossess said premises without process of law and retake and rehold the same as in their former estate, and third party shall .quit and deliver up said premises to said first and second parties.”

On December 30, 1938, the plaintiff, E. ,R. Biggs, instituted this suit in the District Court of Hutchinson County against the defendants, Pharis Oil Company, IT. F. Cypher and Clem Hinds to have the corporation dissolved, its properties adjudged to him as the .only stock holder; asked that a writ of exec.ution issue and the property be restored to the possession of plaintiff, and in an amended petition asked that the temporary injunction theretofore issued be perpetuated restraining the defendants from interfering with the enjoyment, occupancy and possession of the premises by plaintiff.

He alleged that the Pharis Oil Comr pany had failed to pay its - franchise tax and forfeited its charter to do business on July 2, 1932; that he' had acquired all the capital stock of said company; that Clem Hinds failed and refused to pay the $17,500 and the $35,000 in accordance with the provisions of the contract; that he and his predecessors agreed to advance not exceeding $2,000 with which to buy and install additional equipment needed on said lease; that Clem Hinds promised to operate the wells efficiently and use his best efforts to increase the production on the lease; that Hinds took possession of the property under the contract, had never paid exceeding $12,000 thereon and had repudiated the agreement; that by virtue of the breach, default and repudiation of defendant Hinds and the acquisition of the entire stock plaintiff is entitled to a decree adjudging to him possession of the premises for which he has made demand; that the contract stipulated upon default plaintiff and his predecessors should have the right to re-enter and repossess the premises; that the defendant would surrender the property, and all improvements placed thereon by him during his possession should become part of the real property. He attached to and made the contract a part of his petition.

H. F. Cypher disclaimed and the Pharis Oil Company defaulted.

The defendant, Clem Hinds, urged a general demurrer and certain special exceptions which will be hereafter considered ; pleaded a general denial, the. two and four years statutes of limitation and alleged that on and prior to the execution of the contract, December 26, 1929, the first and second parties fraudulently represented to him that all four of: the wells were in good condition except they needed cleaning out, the cost of which would not exceed $2,000, and by such expenditure each of the wells could be made to produce; that the wells were completely cased and they owned all the' personal property on the lease; that he was prevented from making any investigation of the lease or the condition of the-wells; that plaintiff and his predecessors in title knew of these conditions but by-false representations upon which the defendant relied he was induced to execute-the contract. In truth and in fact Wells-Nos. 2 and 3 were -without value ■ because three strings-- of -tools had been- - lost in-well No. 2 and could not be gotten out; that the casing in well No. 3 had Collapsed- and it was impossible to get tools to the bottom thereof; that in an effort to recondition said wells he had expended $4,-762.15; that after he executed the contract certain parties who claimed to be the true owners thereof • were permitted to remove personal property of the value of $5,592 from the lease by the plaintiff and his predecessors who promised defendant that they would pay him therefor by crediting the reasonable value of such property on the consideration he had, agreed to pay, but failed and refused to' allow such credit; that wells Nos. 1 and 4. were not completely cased but prior to the signing of the contract casing of the value of $9,282 had been withdrawn from said wells and removed from the lease; that the refusal of the plaintiff and his predecessors to compensate the defendant for the personal property and the casing removed constituted failure of consideration and such amount if allowed would have paid and satisfied the obligations of the defendant. The defendant further alleged that he made valuable improvements upon the lease aggregating the sum of $21,025.54, which increased the value of the lease in that amount and that he was entitled to compensation therefor. His prayer that the plaintiff take nothing by his suit is the only relief he was entitled to under the allegations in his answer. Milliken v. Smoot, 64 Tex. 171; Hughes v. McDonald, Land Com’r et al., Tex.Civ.App., 122 S.W.2d 366; 33 Tex.Jur. 466, para. 46.

The plaintiff by a supplemental- petition specially excepted to the paragraphs in defendant’s answer in which he alleged fraud, failure of consideration and pay-ment and sought recovery for the improvements of certain personal property, since under the contract the plaintiff on default was entitled to the possession of the premises and all personal property placed thereon by defendant and the allegations of fraud, failure of consideration and payment, disclosed on their face that appellant had discovered and knew thereof abqut January 1, 1931, and retained-possession of the property, failed to rescind and elected to retain the premises and rely on an action for damages which were barred by the statutes of two and four years limitation.

• The ■ case was submitted to the court without the intervention, of a jury and judgment rendered in behalf . of H. F*Cypher on his disclaimer, the Pharis Oil Company was dissolved and the plaintiff, E. R. Biggs, decreed title and possession of the leasehold estate and the clerk directed to issue a writ of execution and the possession of the property be restored to the plaintiff.

The statement of facts was presented to the clerk of this court after the time for the filing thereof had expired, and the appeal is before us without such statement.

The court in his judgment finds that Clem Hinds, the Pharis Oil Company, E. R. Biggs and C. M. Humphrys on the 26th day of December, 1929, made the contract; that the plaintiff, C. M. Humphrys and the oil company were to advance to the defendant $2,000 for repairs and improvements on the property; that they made such advancement; that the defendant defaulted on or before the 1st day of March, 1930, and thereafter continued in possession of the property; that the total payments on the contract were made from the proceeds of oil and gas received from the operation of the lease but did not exceed $15,000; that the defendant repudiated the contract about December 28, 1938, and asserted title to the property; that the plaintiff is the sole owner of the stock and he should have the title and possession of the property, both real and personal.

The appellant challenges as error the action of the court in overruling his special exception to appellee’s petition for failing to allege that he and his predecessors complied with the obligation imposed upon them in the contract to advance to the appellant the sum of $2,000 to be expended for new equipment, repairs and material on said lease. The action of the court in overruling this special exception does not, in our opinion, constitute reversible error. 10 Tex.Jur. 494, para. 287. However, the court found that the appel-lee and C. M. Humphrys had paid to the appellant said $2,000 and hence had complied with the contract, and no objection is urged to such finding.

The appellant specially excepted to ap-pellee’s petition because he contends it appeared on the face thereof that the cause of action alleged was barred by the four years statute of limitation. Article 5520, Vernon’s Ann.Civ.St., on which this contention is based, reads as follows:

“Actions by vendors, etc. There shall be commenced and prosecuted within four (4) years after the cause of action shall have accrued and not afterward, except as herein provided, all actions of the following description:
“1. Actions to recover real estate by virtue of a superior title retained by the vendor in a deed of conveyance or purchase money note.
“2. Actions’ for the foreclosure of vendor’s liens on real estate.
“3. Actions to foreclose deed of trust or mortgage liens on real estate. Provided, however, that where a series of notes may be given or any note may be made payable in installments, or if any other instrument is executed which creates an obligation on the Vendee or Grantee of real estate to pay for the same in installments or partial payments, limitation shall not begin to run until the maturity date of said last note or installment. Upon the expiration of four (4) years from and after the date of maturity of the last said note or installment, payment shall be conclusively presumed to have been made of each said note and installment, and the lien for the security of same shall cease to exist, unless the same is extended by an agreement in writing by the party or parties primarily liable for the payment of the indebtedness, as provided by law.”

If the contract under consideration is subject to the provisions of the article above quoted and the limitation therein provided is available to the appellant as a defense, we think the cause of action alleged was barred by limitation, since the last installment was due January 1, 1933, and the plaintiff filed his suit on December .30, 1938. Yates et al. v. Darby, 133 Tex. 593, 131 S.W.2d 95.

Do the instruments described in the statute include the contract which constitutes the basis of this litigation?

The caption to article 5520 reads as follows: “An Act repealing Articles 5521 and 5523, and amending Article 5520, Chapter 1, Title 91, Revised Civil Statutes of Texas, 1925, relating to Vendor’s Lien, Mortgage Lien, and Deed of Trust Notes secured by lien on real estate, providing time and manner of the running of limitation thereon; and of actions to recover real estate by virtue of a superior title retained by vendors or grantors, and for the presumption of payment and existence of lien; providing the time and manner of enforcement of said notes and liens to secure the same, and for the expiration of the lien in certain cases; providing for the extension of liens and renewal of notes; and declaring an emergency.” Acts 1931, c. 136. The emergency clause mentions only mortgage liens, deed of trust liens and vendor’s liens.

In Currie v. Burgess et al., 132 Tex. 104, 120 S.W.2d 788, 790, involving the construction of a contract similar in many particulars to the one under consideration, in answer to a certified question the Supreme Court said: “The contract set out is plainly only an executory agreement to convey.. It is not a contract of sale. It passed neither the legal nor the equitable title. It does not even recite that the vendor had agreed to sell until one half of the agreed purchase money was paid, at which time he was to execute and deliver a sufficient deed, ‘granting and conveying’ the property to the vendee. It is clear that no equitable title was to vest until half the money was paid, because, in case of-default prior to that time, the payments were to be forfeited as liquidated damages, and the contract would be of no force and effect.”

In City of Fort Worth et al. v. Rosen, 228 S.W. 933, 936, the Commission of Appeals, in holding article 5520 prior to the amendment of 1931 inapplicable to an installment paving lien created by an ordinance of the city, says: “It is contended by the plaintiff that under the statute relating to vendor’s and deed of trust liens it has four years in which to bring suit, and that on the face of the pleadings and from the facts the bar had not operated against recovery. A sufficient answer is that the debt here sued upon and the lien sought to be foreclosed are not comprehended by these statutes. They are limited to the particular liens mentioned.” To the same effect is the holding in Bailey v. Burkitt, Tex.Civ.App., 201 S.W. 725, and in Haugen et al. v. Johnson et al., Tex.Civ.App., 282 S.W. 1115, in which the application for a writ of error was dismissed, but was in substance approved by the Supreme Court in 115 Tex. 489, 283 S.W. 480.

See also Adams v. Harris, Tex.Civ.App., 190 S.W. 245; Bean et ux. v. J. I. Case Threshing Machine Co., Tex.Civ.App., 221 S.W. 634.

The appellant contends that the language in the statute “or if any other instrument is executed which creates an obligation on the Vendee or Grantee of real estate to pay for the same in installments or partial payments, limitation shall not begin to run until the maturity date of said last note or installment” renders this contract subject to the limitation provided therein, but the statute also provides not only that “payment shall be conclusively presumed to have been made * *” but also that “the lien for the security of same shall cease to exist”, thereby connecting the “obligation” and the “lien”.

Under the holdings of the courts and the provisions of the contract it was not a conveyance and no title, either legal or equitable, passed to the defendant. No lien was created by or reserved in the contract to secure the obligation which the appellee agreed to pay. The appellee’s only remedy was by the forfeiture clause, the terms and conditions of which were agreed to by appellant. Forfeitures because of their harshness are not favored by law, but the party agreeing thereto, and not the law, is responsible for any hardships resulting therefrom. Texas Rural Communities v. Avary et ux., Tex.Civ.App., 113 S.W.2d 597. It is our opinion that this article is limited to the particular instruments described therein and does not comprehend the obligation created in this contract, hence, appellant cannot avail himself thereof. We do not believe this conclusion in conflict with the holding in Hughes v. Stovall et al., Tex.Civ.App., 135 S.W.2d 603.

The appellant assails as error the action of the court in sustaining ap-pellee’s demurrer and exceptions, urging the two and four years statutes of limitation to the allegations of fraud, failure of consideration and payment pleaded as a defense in appellant’s answer. The claims of appellant for moneys expended on improvements on the property were according to the dates in the cross-action barred by limitation. Appellant, however, alleged in his pleas of payment and failure of consideration that other parties claimed and were permitted by appellee to remove from the lease personal property of the value of $5,592 which sum he says appel-lee agreed to credit on the purchase price; that the fact was fraudulently concealed from him of pipe of the value of $9,282 having been removed from certain wells before he executed the contract of purchase. In our opinion the last two amounts were not under the allegations subject to the exceptions urging limitation.

In 28 Tex.Jur. 135, para. 53, the writer, speaking of limitation, says: “Thus the statute is not .available as a bar to a defense of fraud or mistake, failure of consideration, waiver and estoppel, usury, or payment, regardless of whether the payment was made with money, personal property or services; and, in an action upon a contract an answer setting up the failure of the plaintiff to perform is not subject to exception on the ground that the defense is barred by limitations.”

In Terry et al. v. Baskin et al., Tex.Com.App., 44 S.W.2d 929, 933, 78 A.L.R. 1067, Judge Critz, after reviewing numerous authorities, holds: “That the defendants' special answer of fraud alleges a defense to the cause of action asserted by the plaintiffs Morrison & Lewis, and * ⅜ Such defense is not barred by any statute of limitation.” To the same effect is the holding in Mason v. Peterson et al., Tex.Com.App., 250 S.W. 142.

In Mason Gin Co. v. Continental Gin Co., Tex.Civ.App., 43 S.W.2d 955, writ of error refused, it is held: “The law seems to be well settled that, as between the original payor and payee in a note, there is no limitation against the right of the payee to defeat its payment by reason of the failure of the consideration in whole or in part for which it was executed. Mason v. Peterson (Tex.Com.App.) 250 S.W. 142, par. 10, 146; Stroud v. Toland (Tex.Civ.App.) 279 S.W. 609; McNeese v. Page (Tex.Civ.App.) 29 S.W.(2d) 489 (error dismissed); Fievel v. Zuber, 67 Tex. 275, 3 S.W. 273; Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815, 817.”

In Konz v. Pratt, Tex.Civ.App., 249 S.W. 258, it is held a plea that a note should be credited with certain fees, and if so credited the debt would be completely paid, is a good plea of payment and not subject to a pl.ea of limitation.

As authority for the conclusions here reached, we also cite Shambaugh v. Anderson, Tex.Civ.App., 92 S.W.2d 530; Dallas Joint Stock Land Bank v. Sneed et al., Tex.Civ.App., 91 S.W.2d 1102; Shaw, Commissioner of Banking and Insurance, v. First State Bank of Iowa Park et al., Tex.Civ.App., 13 S.W.2d 133; Stroud v. Toland, Tex.Civ.App., 279 S.W. 609. For the reason that the court erred in holding that the answer disclosed on its face that limitation had barred the defenses of fraud, failure of consideration and payment, these assignments are sustained. All other errors urged by appellant are overruled.

The judgment is reversed and the cause remanded.


author: SPEER, Justice.

text:
    LE MASTER v. FORT WORTH TRANSIT. CO. et al.
    No. 14069.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1940.
    Rehearing Denied Sept. 6, 1940.

      Martin, Móore & Brewster, of Fort Worth, for appellant.
    Cantey, Hanger, McMahon, McKnight & Johnson and W. D. Smith, all of Fort Worth, for appellees.
   SPEER, Justice.

This is an appeal by C. E. LeMaster, plaintiff below, from a judgment entered non obstante veredicto on motion therefor by the defendants.

LeMaster instituted suit against Fort Worth Transit Company, a corporation, and A. F. Townsend, Receiver of Northern Texas Traction Company, for damages sustained by himself and wife when injured, as a result of LeMaster’s automobile coming in contact with the rear end of the defendants’ street bus, on March 5, 1938, at the intersection of Chambers Street and East Lancaster Avenue, in the City of Fort Worth. In this opinion we shall refer to LeMaster as plaintiff, and to the other parties as defendants.

Many alleged wrongful acts are set out in the petition, in which defendants are charged with negligence proximately causing plaintiff’s injuries, and by defendants’ answer, plaintiff is alleged to have been guilty of several acts of commission and omission, claimed to be negligence and a proximate cause of the accident and the resulting injuries. The pertinent allegations' of both are revealed by the issues submitted to the jury, as hereinafter referred to.

When taking of testimony was concluded, both parties moved for an instructed verdict ; the motions were overruled and many special issues were submitted to the jury.

The court defined in his charge “ordinary care”, “negligence”, “proximate cause”, “proper lookout” and “preponderance of evidence”. We shall have occasion later to refer to some of these charges in connection with issues submitted.

By the verdict, the jury found (1) that the operator stopped the bus on the occasion in question within the intersection of East Lancaster and Chambers Streets; (2) that the operator of the bus brought it to a sudden stop on the occasion in question, and that his act in bringing the bus to a sudden stop in the intersection mentioned constituted negligence and a proximate cause of the collision. Relating to the acts of plaintiff, which defendants charged as negligence proximately causing the accident, the jury, by its verdict, found, (a) plaintiff did not fail to keep a proper lookout, (b) plaintiff was not operating his car at a greater rate of speed than 20 miles per hour, immediately prior to the accident, (c) just prior to the accident plaintiff was not following the bus more closely than was reasonable and prudent, having due regard to the safety of said vehicle, (d) plaintiff was not operating his vehicle at a negligent rate of speed under the circumstances, (e) plaintiff’s car was provided with adequate brakes in good working order, (f) plaintiff’s failure to apply his brakes in time to slow down before running into the back end of the bus was not negligence, (g) LeMaster’s acts in permitting his car to come within ten feet of defendants’ bus while approaching and passing the street intersection was not a proximate cause or proximately contributing cause of the collision, (h) plaintiff’s failure to turn his car to the left and thereby avoid striking the back end of the bus was not negligence, (i) that he was not negligent in failing to slow down or stop his automobile before it strpck the back end of the bus, (j) plaintiff’s failure to use all the means at his command to stop or slow down his car before it struck the rear end of the bus was not negligence, (k) plaintiff’s failure to apply his brakes in time to slow his car down or stop it in time to avoid striking the bus did not constitute negligence on his part, (1) the plaintiff failed to have his car under control immediately prior to the collision, so as to prevent the accident, but that such failure did not amount to negligence.

After the verdict was received, defendants moved for judgment non obstante veredicto, under the provisions of Article 2211, Vernon’s Ann.Tex.Civ.St. That article provides: “The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. * *”

Neither the nature of defendants’ motion, the notice nor service thereof is questioned by plaintiff, and the judgment recites all the requisites necessary under the statute and its construction, as announced in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, and Myers et al. v. Crenshaw et al., 134 Tex. 500, 137 S.W.2d 7. There is a recitation in the judgment in these words: * * And the court further finds and is of opinion that a directed verdict herein would have been proper and that a judgment non obstante veredicto should therefore be rendered herein in favor of the defendants.” The court follows the quoted finding with its order sustaining the motion and decreed that plaintiff take nothing by his action and that defendants go hence without day and recover all costs incurred.

The only theory upon which the judgment of the trial court can be sustained is that, as recited in his findings, a directed verdict for defendants should have been returned.

Based upon adequate assignments of error, plaintiff summarizes them into three propositions upon which he contends the court erred in sustaining the motion of defendants that an instructed verdict should have been directed. The substance of these propositions is: (1) The court should have entered judgment for plaintiff on the verdict, wherein it was found that defendants’ driver was negligent in suddenly stopping the bus in the intersection of the two streets, that the act was negligence and a proximate cause of the injury, and further, because the jury acquitted plaintiff of negligence proximately contributing to the injury; (2) since defendants maintained a designated stopping place for their buses at the junction of the north side of Lancaster and the east side of Chambers Streets, and plaintiff was familiar with its location, that the bus in question passed the regular stopping point and entered the intersection where it came to a sudden stop, the court was not warranted in finding that as a matter of law, plaintiff was guilty of negligence proximately causing or contributing to the injury, even if he was driving in close proximity to the rear of the bus, and did not use all the facilities at his command to slow down or stop his car before the accident happened. Because, it is asserted, there was nothing plaintiff could do to prevent the accident Under the surrounding circumstances, as they then existed; and (3) even though the jury found that plaintiff was violating a city ordinance at the time of the accident, rendering him negligent as a matter of law, it was necessary to have a finding by the jury that such negligence was a proximate or contributing cause, and the court was not warranted in holding that as a matter of law, the negligent act was a proximate cause of the injuries sustained.

Some presumption may be indulged that there was sufficient evidence adduced upon the trial to support all issues submitted by the court. This presumption had it origin in constructions given to the previous Article 2209, R.C.S.1925. The amendment, now Article 2211, supra, was enacted to give the trial court more authority than had previously existed under the law. It is now provided that if, after having submitted special issues to the jury and their answers are returned, the court should then conclude that he should have directed a verdict before submitting special issues, and a motion is made, followed by the required notice, he may enter judgment non obstante veredicto.

The evidence in this case is conflicting as to just where the bus stopped. Plaintiff’s allegations on this point were that defendants’ driver, at about the middle of Chambers Street, caused the bus to “come to a sudden and abrupt stop, or caused (it) to practically stop, without warning to the plaintiff.” The question of whether or not the bus driver gave a signal or warning of his intention to stop was not submitted. The jury found that the operator of the bus brought it to a sudden stop within the intersection of Lancaster and Chambers Streets. Lancaster Street, the place where the accident occurred, is slightly down grade in the direction both vehicles were traveling. The bus could not be stopped except by use of the brakes. The bus was equipped with red rear signal lamps, which came on automatically with pressure on the brake pedal. The bus was inspected and placed in perfect condition during the preceding night; the accident occurred within a few minutes after it started out on its first run; the rear signal lights were operating when tested thirty or forty minutes afterward; the bus operator said he applied his brakes 35 or 40 feet east of where he stopped. Plaintiff testified that he did not see the rear signal lights. As a general rule, whether or not an act is negligence and a proximate cause is one of fact, but this is not always true. If a penal law is violated the act becomes negligence as a matter of law; to stop a motor vehicle on a public .thoroughfare without giving a' plainly visible or audible signal of the driver’s intention to do so is in violation of Article 801 (K) of the State Penal Code. These things may have been the reason why no inquiry was made of the jury whether or not the bus driver suddenly stopped his. vehicle “without warning to plaintiff”, as alleged in his petition. Under all the circumstances, the jury found that the time, manner and place of stopping w.ere negligence proximately causing the accident. We will not assume that the trial court disregarded the verdict in this respect, when he concluded that a directed verdict should have been returned.

It is evident that the court based his ruling, in this respect, upon a finding that plaintiff was guilty of negligence and proximate cause, as a matter of law. It is a well settled rule of law in this State, that damages cannot be recovered for an injury inflicted by a wrongful act, if the injury was proximately contributed to by the negligent act of the one receiving the injury. 30- Tex.Jur., sect. 88, page 754.

The testimony in. this case is contained in a volume of over 300 pages, but a summary of it all, insofar as the acts of plaintiff are concerned, may be stated as follows: Plaintiff was accustomed to going west of Lancaster Avenue each morning between five and six o’clock to the place where he worked; he was a few minutes late in starting on the morning in question; defendants’ car barn is on Lancaster Avenue; plaintiff saw the bus come out from the barn' on the south side and cross the Avenue to- the north side, in front of him; he followed- the bus for a distance of two or three blocks; both vehicles traveled at about 18 or 20 miles per hour; the distance between plaintiff’scar and the bus ranged from 10 to 30 or more feet most of the time; defendants had placed a sign on a post at Lancaster and Chambers Streets, designating that as a place where buses would stop to take on and let off passengers; plaintiff knew of this sign and the defendants’ custom with respect thereto; Lancaster is a broad, paved avenue and there - was little traffic on it the morning of the accident; Chambers Street extends north from Lancaster Avenue, is a graveled street and does not extend across Lancaster; on the morning in question, the bus did not stop with its front end at the designated'place; the driver said the- front end- was about eight feet past the sign when he stopped, hut plaintiff said the rear end had .passed the corner and the whole bus was in the intersection when it suddenly stopped; in describing the manner in which it stopped, plaintiff said: “Well, it just sat down right there and stopped.” There was nothing that happened to require an emergency stop by the bus. Plaintiff said he did not notice whether or not the stop signal lights flashed on the rear of the bus before it stopped; he knew that those lights which had “stop” printed across them meant that the driver was going to stop or do something, that they were to warn those who followed. That when he first observed that the bus had stopped, his car perhaps was .within six feet of it. A few feet back from where the collision occurred, plaintiff had decided to pass around the bus to its left and had speeded up and cut his car to the left for that purpose. That the bus stopped so suddenly that he did not have time to put on his brakes or lessen his speed before he crashed into the back end of the' bus; the description given by plaintiff of the nature and effect of the impact indicates that his car was reduced to “junk”, that it was ruined and he afterward sold it for $10; the picture in the statement of facts bears out his contention; plaintiff received some injuries and those to his wife were shown to be serious and permanent;' he further testified that at the rate of speed he was driving he could have stopped his car-within-25 or 30 feet if he had been warned that the bus in front of him was going to stop.

Testimony offered by defendants from a witness who was standing east and within arm’s reach of the post on which the “car stop” sign was fastened, shows that as the bus approached the corner, where he stood, it began slowing down and. pulling up to the curb; the distance east at which the bus began to slow down for the stop was illustrated by the witness by objects in the court room and is unintelligible to us; he said the bus pulled up to within about two feet of the curb, but the front end at which he expected to enter was- three or four steps past him when it stopped and the door was opened; just as he was about one step from the door, the crash occurred; he did, not enter, but was asked to go to a telephone and call an ambulance. The driver of the bus testified that he left the car. barn at 5:45 in the morning and as he approached Chambers Street about three blocks from the barn he saw a man On the corner; that there was a car parked on the north side of Lancaster about 40 or 45 feet east of the car stop sign; that the front of the bus passed the sign 8 or 9 feet; that the bus was traveling 12 or 15 miles per hour when he began- slowing down for the stop back about 35 feet from where he stopped. That just before the passenger entered, the crash came and knocked the bus about 20 feet; it weighed about seven and a half tons and plaintiff’s car weighed about 1,500 pounds; he had used his brakes in bringing the bus to a stop, but when he had stopped he removed his foot from the brake pedal; the motor is in the rear end of the bus and the impact put it out of commission. That about thirty or forty minutes after the accident, the lights were tested and the rear stop lights were working. That in operating the bus, it does not always stop immediately opposite the sign, but sometimes goes a few feet past, before he can bring it to a complete stop; that on the occasion in question he had held his foot on the brake pedal for about 35 feet and his rear stop signals were working; that it usually required about 35 feet to bring the bus to a stop when traveling 12 to 15 miles per hour. That the stop he made was a gradual and easy one; that there was nothing in front of him to require an emergency stop. Another disinterested witness who saw the collision said he was 25 or 30 feet from the corner and when the passenger started to get on the bus, it was two and a half or three feet from the Lancaster Street curb; that plaintiff’s car was 25 or 30 feet behind the bus and was going 30 or 35 miles per hour; he saw plaintiff’s car strike the bus. A mechanic in the employ of defendants testified that the bus was so constructed that when the brake pedal is touched two red rear stop lights automatically come on the bus; they are five inches in diameter; he tested the lights within a few minutes after the accident and they were working. There was also testimony that there was a large oil spot on the pavement of Lancaster Avenue, even with an extension of the sidewalk on the east side of Chambers Street, immediately after the collision. Photographs made at the request of plaintiff’s counsel shortly after the accident indicate that the oil spot was as testified to by the witness. Obviously it is impossible to give anything more than excerpts from the testimony in this opinion,-but we have endeavored to-refer to those parts relied upon by' all parties,' as ■ disclosed by their briefs, after having compared their statements with the record.

Sections of Article 7 of the City Ordinance regulating motor traffic in the City of Fort Worth were before the court. Section 52 reads: “Following too closely. The driver of a vehicle shall not follow another more closely than is reasonable and prudent, having due regard to the speed of' such vehicles and the traffic upon and condition of the roadway.”

Section 70 of'Article 7 of the ordinance prohibits the operation of a motor driven vehicle upon or along a highway or street within the City at a greater rate of speed than 20 miles per hour.

Another section of the ordinance reads: “Approaching vehicle at crossing. No person having charge of a vehicle shall allow the same to come within ten feet of any vehicle in front of him while approaching and passing over a crossing of an intersecting street.” - -

The court’s charge on negligence was in the usual form and in substance told the jury that ordinary care was that degree of care which an ordinarily prudent person would exercise under similar circumstances, and that a failure to use that degree of care was negligence. Under the court’s definition-of proximate cause, the jury was told substantially that it meant-the moving and' efficient cause without which the injuries would not have happened; that it was the proximate cause when the-injury was thq natural, or probable consequence of the act, and one that ought to have been foreseen, under the circumstances, by a person of ordinary care and prudence. That the act need not- be the sole cause, but must be one which- contributed to cause the injuries complained of and but for which the result would not have occurred; there may be more than one proximate cause.

Plaintiff contends in his brief that the question of proximate cause as to each of the matters in-which the jury found -him negligent. was; a question of fact for the jury and that the trial court was unwarranted in finding that they became matters of law for his own determination. He cites several decisions.by our courts which hold that under the circumstances involved in the case under consideration, those issues wer-e-of fact for the jury.' In the cited case of Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, adopted by the Supreme Court, approaching the subject it was said that there were cases holding that those issues become questions of law but they are rare. That case involved an injury sustained by a pedestrian while walking outside the lane designated for that purpose, when struck by an automobile; the court reasoned, 122 S.W.2d at page 1065: “Just how this injury would have been avoided had Miss Burkhart been in the pedestrian lane instead of outside of it we are unable to demonstrate.” From the quoted expression the proper rule may be deduced. The latest expression on the point by our Supreme Court is found in Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1, 2, where it is said: “If reasonable minds can draw different inferences or conclusions from undisputed facts, a fact issue is presented.” This test illustrates the distinction between that and this case.

Plaintiff cites us to Postal Telegraph & Cable Co. v. Saper, Tex.Civ.App., 108 S.W.2d 259, which case was tried to the court, in which it was found that defendant was negligent, proximately causing the injury, while the plaintiff was negligent, having violated a penal ordinance, but that the latter was not a proximate cause. In such cases, where no jury is demanded, the'court passes upon matters of law as well as of fact and would not be a fair criterion where a jury trial is had and the matters of law are for the court and those of fact for the jury.

It was held in Dallas Ry. Co. v. Eaton, Tex.Civ.App., 222 S.W. 318, writ dismissed, that the same principles of law governing the application of the law of proximate cause in the ordinary negligence case are applicable in cases of contributory negligence.

Likewise, we are earnestly requested to study the holding in Western Development Corporation v. Simmons, Tex.Civ.App., 124 S.W.2d 414, writ refused. In that case defendant had left a truck parked in the street at night without lights, in violation of a penal ordinance. Plaintiff did not see the truck until its presence was revealed by her own lights. She did not discover the parked truck in time to avoid striking it. The jury convicted defendant of negligence and proximate cause. By the verdict, it was found that plaintiff kept a proper lookout and although she did not have her car under such control as to enable her to stop it within the area lighted by her car lights, yet the lack of control was not a proximate cause of the injury. The question of lookout by plaintiff evidently controlled the facts in that case and forcibly emphasizes that the facts in each case must be considered in arriving at negligence and proximate cause. The opinion of the court recognizes that in many cases decided by our courts facts are presented which make negligence and proximate cause questions of law. We believe the instant case is one of that kind.

The physical facts in this case are impelling in their nature. Defendants’ bus was going down grade on a paved street. Traveling at from 15 to 18 miles per hour; the' bus weighed seven tons or more; it was equipped with rear signal lights which operated automatically by pressure on the brake pedal; seeing a passenger at the corner the driver began slowing down by pressure on his brakes about 35 feet east of the corner, so as to be able to make an easy stop at that place. Plaintiff said he knew that when those rear red lights came on, it was a signal that the driver was going to stop. He says he was driving 20 or 30 feet behind the bus; he did not see the signal lights on the bus. Such negative testimony would not refute the positive evidence that they were in good order and were functioning. Schaff v. Bearden, Tex.Civ.App., 211 S.W. 503; Reza v. International & G. N. Ry. Co., Tex.Civ.App., 277 S.W. 182, writ dismissed; Jacobe v. Goings, Tex.Civ.App., 3 S.W.2d 535, writ dismissed. The point on the pavement where the oil was found reflected by the photographs, the demolished condition of plaintiff’s car and the distance the heavy bus was knocked by the impact, all tend to show indisputably that plaintiff’s light car was traveling very fast and that he was not keeping a proper lookout, i. e., such lookout as a reasonably prudent person would keep under such circumstances. Plaintiff knew he was following the bus, that it was equipped with air brakes and that it was accustomed to stop at the sign to take on passengers, and furthermore should have reasonably foreseen that an emergency might arise any time requiring a sudden stopping of the bus; he knew he was traveling so close to it that if the condition arose for a sudden stopping that he could not stop his own car within the distance between him and the bus. Such situation, it seems to us, prompted the passage of the ordinance which prohibited the operation of one vehicle following another more closely than was reasonable and prudent.

Again plaintiff says that when the bus stopped, his car was less than ten feet from it, possibly within six feet, and the jury found that his proximity did not contribute to the cause of the collision; it is evident that plaintiff failed to have his car under control so that he could stop or avoid striking the bus, but this was found not to • be negligence. Plaintiff said that when he saw the bus had stopped, he was too close to apply his brakes and so far as he knew he did not do so; this too, was found not to be negligence. We cannot escape the conclusion that since the undisputed evidence shows that plaintiff was acting in violation of the ordinance in operating his car within ten feet of the rear of another vehicle moving in the same direction, approaching and passing over Chambers Street, that he was admittedly too close to the bus when he discovered that it had stopped to apply his brakes or turn left and miss it, and that he had failed to keep a lookout and observe the stop signals displayed by the bus driver, he was guilty of negligence which undoubtedly contributed to the happening of the event, as a matter of law. Blakesley v. Kircher, Tex.Com.App., 41 S.W.2d 53, approved by Supreme Court. It is the well settled rule of law that if there are any circumstances shown by the evidence when taken as a whole, other than those things which constituted negligence as a matter of law, from which it could be reasonably inferred that the accident happened, then whether or not the acts constituted negligence and proximate cause would be fact issues for the jury. As we view the evidence in this case, they do not appear here. We cannot escape the very definite conclusion that the evidence reveals, indisputably, that plaintiff’s own conduct was negligence and a cause proximately contributing to bring about the accident as a matter of law, nor do we believe that reasonable minds could differ upon the point. Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456; Ft. Worth & D. C. Ry. Co. v. Bell, Tex.Civ.App., 14 S.W.2d 856, writ refused.

Plaintiff in this case was chargeable with knowledge of what all drivers of automobiles know, i. e. that there is a potential danger incidental to driving a car on a public highway; more especially, as in this case, in closely trailing a moving street bus, which is commonly known to make frequent stops, whether at designated places or otherwise, to take on passengers. In such circumstances, it is always the duty of drivers to keep such a lookout for their own protection as the surrounding conditions require of a reasonably prudent person. If he fails to do so, he is negligent, and if his negligence contributes to cause an accident in which he suffers injury, he cannot recover. Standard Paving Co. v. Webb, supra; Texas & N. O. Ry. Co. v. Adams, Tex.Civ.App., 27 S.W.2d 331, writ dismissed; Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439, writ refused; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714; Gulf, C. & S. F. Ry. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; Fort Worth & D. C. Ry. Co. v. Hart, Tex.Civ.App., 178 S.W. 795; Koock v. Goodnight, Tex.CivApp., 71 S.W.2d 927, writ refused; International & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106; Texas & N. O. Ry. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, writ refused. We hold that under the undisputed evidence in this case and the authorities cited, plaintiff was guilty of negligence which proximately contributed to the accident in failing to keep a proper lookout, as that term was defined in the court’s charge. Also, the same rule will apply when he drove his car more closely to another vehicle than was reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the roadway, as provided in the ordinance; likewise, in driving within ten feet or less of another vehicle in front of him while approaching and passing over a crossing of an intersecting street, as prohibited by the ordinance. . It is impossible for us to perceive any other reason or theory upon which the accident could have happened as it did but for plaintiff’s acts so enumerated, and that the incidents pointed out proximately contributed to the result and but for which the accident would not have happened; nor do we believe that reasonable minds could draw a different inference or conclusion from these undisputed facts. Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1.

The trial court reached the conclusion herein expressed by us, when he found that a directed verdict should have been returned. Irrespective of the negligence of defendants proximately causing the casualty, if, as in this case, the negligence of plaintiff contributed to bring- about the accident of which complaint is made, plaintiff will be denied a recovery.

'We too think, and so hold, that under the undisputed evidence in this case the court should have directed a verdict for defendant ; having not done so at the conclusion of taking evidence, it was proper for the court to sustain the motion of defendant 'for judgment non obstante veredicto.

There being no error shown, plaintiff’s assignments of error and the propositions presented thereunder are overruled and the judgment is affirmed.