Summary
In A.B.C. Stores v. Taylor, 136 Tex. 89, 148 S.W.2d 392, it was held that a finding of unavoidable accident conflicted with findings of negligence by the parties.
Summary of this case from Bradford v. ArhelgerOpinion
App. No. 25371.
Decided February 5, 1941.
1. — Contributory Negligence — Judgment — Jury.
Ordinarily a finding by the jury that plaintiff was guilty of contributory negligence, which proximately caused her injury, would require the rendition of a judgment in defendant's favor.
2. — Jury — Negligence — Conflict in Jury Findings — Unavoidable Accident.
Findings by the jury, upon an issue of unavoidable accident that the occurrence upon which recovery was sought was an accident, and that neither plaintiff nor defendant were guilty of negligence, were in conflict with their finding that plaintiff was guilty of contributory negligence and that defendant was guilty of negligence.
3. — Findings of Facts — Conflict — Courts.
When a jury has returned findings which are, in themselves, conflicting it is the duty of the trial court to sustain plaintiff's motion to return the jury to its room for further consideration of the court's charge, calling attention, without comment, to the conflict, and to deny defendant's motion to render judgment in its favor.
4. — Special Issues — Charge of Court — Unavoidable Accident.
Where a case is being tried on special issues, the court in his charge to the jury on the issue of unavoidable accident should include a definition of that term, but a general charge relating thereto should not be given.
Application for writ of error to the Court of Civil Appeals for the Ninth District, in an appeal from Jefferson County.
Suit by Mae Taylor, a feme sole, against the A.B.C. Stores, Incorporated, to recover damages for injuries alleged to have been sustained by the said Mae Taylor, while a customer in a store owned and operated by the defendant. Said injuries were caused by plaintiff falling over some boxes located in the aisle of said store. Defendant was charged with negligence in placing said boxes in the aisle and in permitting them to remain there for such a period of time that in the exercise of ordinary care they should have known of their presence. Defendant answered by general denial and a plea of contributory negligence on the part of plaintiff in stepping backward with pushing a basket cart around the store. In the trial court upon answers to special issues, judgment was entered that the plaintiff take nothing by her suit. This judgment was reversed and remanded by the Court of Civil Appeals because of a conflict in the findings of the jury in respect to defendant's negligence, 145 S.W.2d 294, and defendant has brought error to the Supreme Court.
The application is dismissed for want of jurisdiction — Correct Judgment.
Orgain, Carroll Bell, Major T. Bell and John G. Tucker, all of Beaumont, for plaintiff in error.
This case ( 145 S.W.2d 294) is before us upon application for writ of error. The trial court's judgment was reversed and remanded by the Court of Civil Appeals because of a conflict in the jury findings with respect to defendant's negligence. The Court of Civil Appeals correctly holds that the findings of negligence on the part of defendant destroy each other.
1 The jury further found that plaintiff was guilty of contributory negligence proximately causing her injuries. Defendant insists that in the light of this finding the Court of Civil Appeals should have affirmed the judgment for defendant.
Ordinarily such finding of contributory negligence would require a rendition of judgment in defendant's favor. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.
2 The record shows, however, that the jury's finding, in effect, upon the issue of unavoidable accident, was that the occurrence upon which recovery was sought was an accident. This finding, carrying with it, as it does, the further finding that neither plaintiff nor defendant was guilty of negligence, is in conflict with the finding that plaintiff was contributorily negligent, as well as with the finding that defendant was negligent.
The trial court should have sustained plaintiff's motion to return the jury to its room for further consideration of the charge,
3 The trial court should have sustained plaintiff's motion to return the jury to its room for further consideration of the charge, pointing out in this connection (without comment) the issues the findings to which are in conflict; and should have denied defendant's motion to render judgment in its favor.
While the judgment of the Court of Civil Appeals reversing and remanding the cause is correct, the ground upon which its judgment is predicated is erroneous.
4 The instruction of the Court of Civil Appeals to omit upon another trial the general charge contained in the second paragraph of the court's definition of unavoidable accident, is correct.
The application for writ of error is dismissed "W.O.J. — Correct Judgment." Vernon's Ann. Civ. St. art 1728; Republic Ins. Co. v. Highland Park Independent School Dist., 133 Tex. 545, 125 S.W.2d 270.
Opinion delivered February 5, 1941.
Rehearing overruled February 26, 1941.