Writ of error granted February 29, 1928.
November 3, 1927. Rehearing Denied November 23, 1927.
Appeal from District Court, Brazoria County; M. S. Munson, Judge.
Action by Ernest Whitson against H. L. Nichols. Judgment for defendant, and plaintiff appeals. Affirmed.
Rucks Enlow, of Angleton, for appellant.
A. E. Carlos B. Masterson, of Angleton, for appellee.
This is an action for damages based upon averments, affirmed upon the one side and denied upon the other, that appellee negligently, upon the public highway, drove his automobile against the plaintiff, thereby proximately causing serious injury to him.
The trial court, after defining in a concededly correct manner the terms "negligence," "ordinary care," "proximate cause," "contributory negligence," and "unavoidable accident," submitted the cause to a jury upon special issues, which, together with the jury's answers, were as follows:
"No. 1. Was the injury to plaintiff, if any, the direct and proximate result of an unavoidable accident, as the same has heretofore been defined? Jury's answer: `No.'
"No. 2. Was the defendant guilty of negligence, as that term is hereinbefore defined, in striking plaintiff with his car? Jury's answer: `Yes.'
"No. 3. Was such negligence on the part of the defendant in striking the plaintiff with his car the proximate cause of the injury to plaintiff? Jury's answer: `No.'
"No. 4. Did the defendant at the time and place alleged in plaintiff's petition drive his automobile past the plaintiff at such rate of speed as to endanger the life and limb of the plaintiff? Jury's answer: `Yes.'
"No. 5. If you have answered the foregoing special issue No. 4 `Yes,' then you will answer the following special issue: Was the driving of such car at such rate the proximate cause, as that term is hereinbefore defined, of the injury to plaintiff, if any? Jury's answer: `No.'
"No. 6. Was it necessary, under the circumstances in this case for the defendant, at the time and place alleged in plaintiff's petition to have sounded his automobile horn as a warning of danger to plaintiff? Jury's answer: `Yes.'
"No. 7. Was such failure on the part of the defendant to sound his horn at the time and place the proximate cause, as that term has been heretofore defined, of the injury to plaintiff?' Jury's answer: `No.'
"No. 8. Was the plaintiff guilty of contributory negligence, as that term is hereinbefore defined, at the time and place complained of in plaintiff's petition? Jury's answer: `Yes.'
"No. 9. Was the contributory negligence on the part of plaintiff at such time and place the proximate cause of the injury? Jury's answer: `No.'
"No. 10. What amount of money, if paid at this time by defendant to plaintiff would fairly compensate plaintiff in damages for the injuries sustained? Jury's answer: `Nothing.'"
On the coming in of this verdict, the court denied appellant's motion to set it aside and entered judgment in favor of the appellee, from which action the appeal is prosecuted.
The one general proposition relied upon for a reversal is the contention that the jury's answers to the special issues were insufficient to warrant a judgment for either party, in that they were inconsistent, irreconcilable, contradictory, and contrary to the undisputed evidence.
We cannot agree that there was any such conflict. Before the appellee could be held liable, it was indispensable to show, not only that he was negligent, but also that his negligence was the proximate cause of the injuries complained of. In the absence of either of these elements against him, he was entitled to an acquittance of the charge, and this the jury gave him in expressly finding that his contributory negligence was not the proximate cause of the injuries.
It was merely incumbent upon him to present a defense to the effort to fasten responsibility upon himself — not to further account for how the collision might have or probably did happen — and, having done that in securing a finding upon evidence that is not challenged as being insufficient, he was plainly entitled to the judgment rendered, regardless of the extent of the injuries so unfortunately received by his litigating opponent, or what may have caused them.
In other words, this is not a case where the undisputed evidence showed that the facts found to amount to contributory negligence did constitute the proximate cause of the resulting injury, notwithstanding the jury's finding that they did not, nor one where a judgment could have been rendered for plaintiff on a finding in his favor except for some other inconsistent, irreconcilable, or nullifying one, but rather an instance in which the jury consistently answered — on sufficient evidence — that the defendant's acts, though negligent, did not furnish the proximate cause of the injury, thus failing, in any event, to fix liability upon him. No other judgment than one in his favor could therefore have properly followed. Martinez v. Irr. Co. (Tex.Civ.App.) 171 S.W. 1035; Underwriters v. Schrieber (Tex.Civ.App.) 240 S.W. 963.
The judgment will be affirmed.