Dallas Railway & Terminal Co. v. Bishop

203 S.W.2d 651, 1947 Tex. App. LEXIS 1023
CourtCourt of Appeals of Texas
DecidedJune 16, 1947
DocketNo. 5777
StatusPublished
Cited by21 cases

This text of 203 S.W.2d 651 (Dallas Railway & Terminal Co. v. Bishop) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dallas Railway & Terminal Co. v. Bishop, 203 S.W.2d 651, 1947 Tex. App. LEXIS 1023 (Tex. Ct. App. 1947).

Opinion

PITTS, Chief Justice.

Appellee, D. F." Bishop, sued appellant, Dallas Railway and Terminal Company, for damages as a result of his own personal injuries, for damages as a result of the death of his wife, and for damages done to his automobile all by reason of alleged negligence on the part of appellant that caused the collision between his automobile and a bus being operated by appellant which occurred on July 28, 1945, at a certain street intersection in the City of Dallas. Appellant joined issues with appellee and pleaded certain acts of contributory negligence on the part of ap-pellee. The case was submitted to a jury in the trial court on a .number of special issues. On the verdict of the jury judgment was rendered for appellee in the sum of $22,513 from which an appeal was perfected to the Court of Civil Appeals of the Fifth Supreme Judicial District and the same was transferred to this Court by the Supreme Court.

The jury exonerated appellee from any and all charges of contributory negligence, found that the collision was not an unavoidable accident but that appellee’s damages resulted from and were proximately caused by various acts of negligence of appellant. Appellant presents seven points of error which will be discussed by us in the order that seems most logical to us.

Appellant complains of the refusal of the trial court to submit its special requested issues numbers 1(a), 1(b) and 1(c). The issues sought to inquire of the jury if appellee failed to reduce the speed of his automobile before entering the intersection where the collision occurred and if such failure, if any, constituted a lack of ordinary care which proximately caused or contributed to cause the collision. The trial [653]*653court submitted to the jury the questions of whether appellee failed to keep a proper lookout prior to entering the intersection, and another question if he failed to keep a proper lookout after he entered the intersection, and another of whether appellee operated his automobile at a speed in excess of 30 miles per hour at the time and on the occasion in question, and another of whether appellee was operating his automobile at a greater rate of speed than was reasonable under the surrounding circumstances, as well as other issues about who entered the intersection first and if ap-pellee failed to sound his automobile horn at the time in question. We are of the opinion that under the rule announced by the Supreme Court in the case of Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W. 2d 143 and Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266, the issue of speed was submitted to the jury and found against appellant. Unless appellee failed to keep a proper lookout and was operating his automobile at a greater rate of speed than was reasonable under the surrounding circumstances, he was not under any duty to reduce the speed of the same at the time and the contention of appellant to the contrary is overruled.

Appellant complains that the trial court erred in refusing it a new trial because of improper argument made by ap-pellee’s counsel before the jury.

One of appellee’s witnesses had testified that the speedometer on appellee’s automobile stood at 12 miles per hour after the collision and was locked there; that the dashboard of the automobile was broken and that in his opinion the impact would not have knocked the speedometer lower than the rate of speed the automobile was moving at the time of the collision. Ap-pellee’s attorney in his opening argument while discussing appellee’s rate of speed quoted the testimony of the said witness and further stated, “If this witness is wrong about it, the City of Dallas is full of mechanics who could dispute that issue if they wanted to dispute it”, whereupon appellant’s attorney objected on the ground it was prejudicial when all parties discovered the trial judge was absent from the courtroom (the record reveals that the trial judge had been called to the telephone in an- adjoining room and left the courtroom during the argument for a period of about five minutes without calling for a recess of court or advising counsel of his purpose). The record reflects through appellant’s bill of exception number two approved' by the trial court that appellee’s counsel, seeing the trial judge was out of the room, immediately withdrew his statement from the jury and asked the jury not to consider it for any purpose and ceased argument until the trial court returned to the bench. On the return of the court to the bench, appellee’s counsel advised the court he had withdrawn his remarks from the jury and asked the court to instruct the jury not to consider his statements and the trial court then instructed the jury not to consider counsel’s remarks for any purpose.

In his statement appellee’s counsel did not call the name of any witness who might refute the testimony of appellee’s witness and he did not give any hearsay statement or any other kind outside of the record. We believe the argument, in effect, amounted to a claim that the testimony of the witness quoted was undisputed and entitled to full credence. But appellee’s counsel withdrew his remark immediately and at his request the trial court instructed the jury not to consider counsel’s remark for any purpose and it is presumed that the jury obeyed that instruction from the court and it appears to us that no prejudicial error was committed. In support of our conclusion we cite the following cases: Commercial Standard Ins. Co. v. Shudde, Tex.Civ.App., 76 S.W.2d 561; Ford Motor Co. v. Whitt, Tex.Civ.App., 81 S.W.2d 1032; Sam v. Sullivan, Tex.Civ.App., 189 S.W.2d 69.

Appellant complains again that it should have been granted a new trial because appellee’s counsel criticised appellant’s counsel in an improper and prejudicial manner. Appellant’s bill of exception number three reflects that during the closing argument of appellee’s counsel appellant’s counsel objected six successive times in a very short period of time to the argument before the objections were made about which appellant here complains. The bill reflects that the trial court sustained [654]*654three of the previous objections, overruled one and took no action on the other two. Later, while appellee’s counsel was discussing the issues and particularly the respective rights of motorists at a street intersection, he made reference to the courtesies and consideration people should have for each other and said, “We have got to trust one another to live together in this world. Suppose you have got a knife in your hand. Must I run and get out of your way or can I trust you not to stick that knife in me? Consequently, there is no duty” whereupon appellant’s counsel interrupted the argument and objected to the same on the grounds that the argument was prejudicial and inflammatory. The trial court sustained the objection and at the request of appellant’s counsel instructed the jury not to consider it. Appellee’s counsel proceeded with his argument about the intersection where the collision occurred and the- two streets that intersected there and told the jury that a through highway is detected by stop signs placed where the other streets cross the through highway. Appellant’s counsel then objected to the argument on the grounds that it was not a proper deduction from the evidence and the trial court sustained the objection.

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203 S.W.2d 651, 1947 Tex. App. LEXIS 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dallas-railway-terminal-co-v-bishop-texapp-1947.