
    HILLIARD et al. v. MURDOCK.
    (No. 3175.)
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1929.
    Rehearing Denied April 24, 1929.
    Application for Writ of Error Refused Oct. 23, 1929.
    
      J. Lee Zumwalt, of Dallas, and Ben W. Boyd, of Denton, for plaintiffs in error.
    Currie McCutcheon, of Dallas, for defendant in error.
   JACKSON, J.

This suit was instituted in the district court of- Dallas county, Tex., by the plaintiff Mrs. John Hilliard, a widow, for herself and as next friend for her minor son, John H. Hilliard, Jr., against the defendant, A. B. Murdock, alleged to be doing business under the name of A. B. Murdock Gravel Company, to recover damages for personal injuries sustained by the plaintiff John H. Hil-liard, Jr., on account of the alleged negligence of the defendant.

Plaintiffs allege: That the defendant, A. B. Murdock, was, on October 26, 1923, and long prior thereto, engaged in business under the name of A. B. Murdock Gravel Company, and furnished to others, for various purposes, sand and gravel. That in carrying on said business it was necessary and the defendant did operate automobile trucks on the streets of- the city of Dallas. That on October 26, 1923, O. H. Addison was an employee of the defendant in charge of one of his trucks, and was running it in the prosecution of defendant’s business. That on said date John H. Hilliard, Jr., was in the city of Dallas on Second avenue near the corner of Hamilton street, and desired to go by street car to another part of the city. That the street car had stopped on Second avenue, and the conductor and motorman in charge thereof had gone into a nearby drug store, and John H. Hilliard, Jr., was with them. That the conductor and motorman left the drug store, went to the street car, and said minor followed them for the purpose of becoming a passenger on said street car. That the conductor and motorman entered at the front end of the street car, and the minor undertook to board the car at the same place, but the conductor instructed him to go to the rear foi the purpose of entering the car. That said John H. Hilliard, Jr., undertook to do so, and, just as he turned, one of the defendant’s gravel trucks, driven by and in charge of the said O. H. Addison, running along Second avenue in a northerly direction and at a high rate of speed, passed the street ear while standing, without giving any signal or notice of the approach of the truck, and ran over said minor plaintiff, and injured him so that he will be a cripple for life.

Plaintiffs fully and sufficiently alleged the injuries sustained by the plaintiff John H. Hilliard, Jr.

Plaintiffs alleged that said minor was standing by the side of the street car, in plain view of the driver of said automobile, who failed .to use any means or diligence to stop said truck and avoid injuring said minor, and said injuries were due to tke gross carelessness and negligence of tke said O. H. Addison. 'Tlie plaintiffs ask for damages against tke defendant in bekálf of Jokn H. Hilliard, Jr., in tke sum of $12,000 and in favor of Mrs. Jokn Hilliard in tke sum of $2,580.

Tke defendant answered by general demurrer, general denial, and pleaded tkat tke occurrence was an unavoidable accident; that tke minor was guilty of contributory negli~ gence; alleging in detail tke acts constituting tke contributory negligence upon wkick ke relied as a defense.

By trial amendment and supplemental petition, tke plaintiffs alleged tkat tke defendant was guilty of negligence in violating certain ordinances of tke city of Dallas and subdivision (L) of article 801 of tke Penal Code of tke Revised Criminal Statutes of 1925 of the’ state of Texas.

In response to special issues submitted by tke court, the jury found, in substance, tkat tke accident was not unavoidable; tkat O. H. Addison, the driver of the truck, was guilty of negligence in driving the truck at the speed wkick ke was running, and tkat said negligence was tke proximate cause of tke injuries sustained by John H. Hilliard, Jr.; that Addison failed to give any signal or notice as ke approached tke plaintiff John H. Hilliard, Jr., and the failure to give suck signal or notice was negligence, and suck negligence was tke proximate cause of tke injuries sustained by said plaintiff; tkat John H. Hil-liard, Jr., did not use ordinary care to look for an approaching truck, did not use ordinary care to listen for tke approach of said truck, and did not use ordinary care in crossing the street toward tke street car; that each of said acts was negligence on tke part of John H. Hilliard, Jr., and each contributed to tke injuries ke sustained; that John H. Hilliard, Jr., was damaged by kis injuries $1,-000 and tkat Mrs. John Hilliard was damaged in tke sum of $405.

On these findings, tke court rendered judgment in favor of tke defendant against both of the plaintiffs, from wkick judgment, by writ of error, tke plaintiffs, hereinafter called appellants, prosecute this appeal.

Tke appellants filed a motion for judgment on the findings of the jury, and assign as error tke action of tke court in failing to render judgment in their behalf, because tke jury’s finding established: That the street car was stopped for tke purpose of receiving and discharging passengers and tke plaintiff John H. Hilliard, .Jr., in tke exercise of kis legal right, approached said street car to take passage thereon. Tkat tke defendant’s agent was guilty of negligence in running at tke rate of speed ke was operating said truck. Tkat ke failed to give any signal or warning of kis approach. Tkat suck acts of the defendant’s agent were negligence wkick were tke.proxi-mate cause of ike injuries sustained by tke appellant John H. Hilliard, Jr.; therefore,, suck acts of the agent were in violation of tke law of this state and entitled appellants to a judgment against tke defendant for tke amounts found by tke jury, and tke court erred in denying them judgments therefor.

No objection was made to tke charge of tke court or any of tke issues submitted. No special charge or special issue was reguested. There is no statement of facts in tke record and no bill of exception to any action of the court, except kis overruling their motion for a judgment on tke findings of tke jury.

That tke defendant’s agent was driving kis truck at a rate of speed wkick constituted •negligence and failed to give any signal or warning of tke approach of tke truck, do not constitute a violation of subdivision L of article 801 of the Penal Code of 1925. Tke record does not show whether tke truck was approaching tke street car from tke front or from tke rear. We are not advised what the provisions of tke traffic ordinances of tke city of Dallas are, and there is no finding of tke jury tkat warrants tke conclusion tkat either tke law or tke city ordinances of Dallas were violated, if such violation would, under this record, authorize tke court to render judgment for appellants.

One of appellants’ contentions is, as we understand it, tkat tke court should have rendered judgment in their behalf, as they were entitled to recover on the issue of discovered peril, wkick was alleged by tke pleadings. Tke issue of discovered peril was neither sub•mitted to tke jury nor requested by appellants. Hen'ce, if they had any right of recovery under tke doctrine of discovered peril, suck right was abandoned. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Inasmuch as suck issue was not submitted by tke court and not requested by appellants, and in the absence of a statement of facts, we must assume tkat suck issue was not raised by tke testimony.

Tke appellants assail as erroneous tke special issues submitted by tke court on tke contributory negligence of tke appellant John H. Hilliard, Jr., in wkick tke jury was asked if said appellant exercised ordinary care, the court having theretofore defined ordinary care as suck care as a person of ordinary prudence would exercise under tke same or similar circumstances, because tke court should have instructed tke jury tkat ordinary care is tke care which a person of ordinary prudence similarly situated, and of said appellant’s age and discretion, would have exercised under tke same or similar circumstances.

No objection was made to the definition of ordinary care as given by tke court and no charge requested by appellants defining ordinary care; no motion for rehearing was filed, and tke alleged error is presented for tke first time in this appeal. Without a statement of facts, tke only information disclosed by the record as to the age of the appellant John H. Hilliard, Jr., is the allegation in his pleading that he was 16 years of age at the time of the injury and the statement in the answer of the defendant that he was a minor.

Whether the appellee could avail himself of the contributory negligence of the appellant John H. Hilliard, Jr., as a defense depended upon the discretion and intelligence of said appellant. This was an issue to be determined by the jury. Cook et ux. v. Houston Direct Navigation Co., 76 Tex. 363, 13 S. W. 475, 13 Am. St. Rep. 52; and, in order for the appellants to recover, it should be shown that he was not of such intelligence and capacity as to appreciate his danger. Trinity Valley & N. Ry. Co. et al. v. Scholz et al. (Tex. Civ. App.) 209 S. W. 224. In the state of this record, we must assume that the charge, as given by the court, was based on the facts revealed in the testimony.

The appellants having presented no reversible error, the judgment is affirmed.  