Dallas Ry. & Terminal Co. v. Watkins

*421 LOONEY, Justice. This is an original application for a writ of mandamus commanding Hon. Roy-all R. Watkins, judge of the Ninety-Fifth judicial district court of Dallas county, to enter judgment for defendant, in conformity to the verdict of the jury rendered on the trial of cause No. 100457-A, pending in said court. B. H. Duncan and wife, Ina Mae Duncan, sued the Dallas Railway & Terminal Company to recover damages for the death of their son, James Duncan, resulting from a collision that occurred on a public street of the city of Dallas between an automo: bile in which deceased was riding as a guest of Erman Craydon, driver of the automobile, and a street car belonging to defendant, operated at the time by its agent, servant, or employee. The pertinent issues of negligence and contributory negligence, framed by pleadings and supported by evidence, are sufficiently indicated by the findings of the jury, as hereinafter mentioned. In answer to a proper submission, the jury convicted the defendant of actionable negligence, in that its motorman failed to keep a proper lookout. This finding established, defendant’s liability and entitled plaintiffs to judgment for the amount of damages ascertained by the jury, unless defeated by their findings on issues as to the contributory negligence of deceased. In answer to proper submissions, the jury found that deceased was guilty of negligence in failing to keep a lookout for. the street car at the time and place in question, and that such negligence proximately caused or contributed to cause the collision. This finding effectually defeated plaintiffs and entitled defendant to judgment, unless a mistrial should have been declared by reason of an irreconcilable conflict between this finding and other findings on issues as to the alleged contributory negligence of deceased. After finding deceased guilty of contributory negligence, as just stated, the jury, in response to separate issues, found that deceased failed to warn the driver of the car in which he was riding of the approaching street car; that he failed to request the driver to slow down the car for the crossing; that he failed to request the driver of the automobile to apply the brakes on the car as they approached the crossing, and that he failed to apply the emergency brake prior to the collision, but found that said failures on the part of deceased did not constitute negligence. Plaintiffs moved for a new trial, based upon several grounds, among others, that the answer of the jury convicting deceased of contributory negligence in failing to keep a lookout was in conflict with the other findings acquitting deceased of negligence in other respects. The defendant, denying the existence of a conflict, moved for judgment in conformity to the verdict of the jury. After duly considering these motions, the court entered an order, reciting : “ * * * And the court having heard the motion and argument of counsel for plaintiffs and defendant, and being fully advised in the premises, is of the opinion that the motion of the defendant, Dallas Railway & Terminal Company, for a judgment on said verdict should be in all things overruled, for the sole and only reason that the court finds that the answers of the jury to the special issues submitted are in irreconcilable conflict and will not support a judgment for the defendant, and the court is of the opinion that the plaintiffs’ motion to set aside the verdict, and to grant a new trial herein should be in all things overruled, but that a mistrial should be declared herein, for the sole and only reason hereinabove stated,” and it was so ordered by the court. In answer to the show-cause order, the respondent, Hon. Royall R. Watkins, filed under oath his answer, which, in so far as is material, states: “ * * * That in the exercise of his judicial powers he determined that there was a conflict in material issues in the jury verdict, and therefore set aside the verdict and refused to render a judgment thereon. The jury by its verdict found the defendant guilty of negligence, but, in answer to special issues submitting the contributory negligence of plaintiffs’ deceased son it found him guilty of contributory negligence only on one ground, to wit, that of failing to keep a lookout. But in answer to separate special issues following this one the jury acquitted said deceased of any negligence in failing to warn the driver of the automobile in which he was riding of the approach of the street car, or in failing to request the driver to slow down or to put on his brakes, or in failing to put on the emergency brake himself. Since the jury thus acquitted the deceased of any negligence in doing or failing to do any act which keeping a proper lookout would have required him to do or not to *422 do, these findings are necessarily in conflict as a matter of law with the finding that the deceased was guilty of negligence in not keeping a lookout. If any authority is needed to support this judicial determination by respondent, there is ample authority for such holding. See Dallas Ry. Co. v. Speer (Tex.Civ.App.) 299 S.W. 507; Stiles v. Union Terminal Co. (Tex.Civ.App.) 1 S.W. (2d) 947; Garlitz v. International-Great Northern Ry. Co. (Tex.Civ.App.) 11 S.W. (2d) 591. Wherefore, respondent shows that said petition for mandamus should be denied.” We think the able trial judge erred in declaring a rrlistrial, on the idea that an irreconcilable conflict existed between the findings on the issues of contributory negligence, hence we believe that judgment should have been rendered for defendant in conformity to the verdict as interpreted by us. The jssues on contributory negligence were separately plead and submitted. Answering issues Nos. 17 and 18, the jury could have found deceased not guilty of contributory negligence in the matter of keeping a lookout, necessarily implying that deceased discovered the approaching street , car in time, by the exercise of reasonable care for his own safety, to have avoided a collision, and yet, with perfect propriety, and without a conflict, could have found him guilty of contributory negligence on either or all of the other issues. However, having found deceased guilty of contributory negligence in failing to keep a lookout, necessarily implying that the approaching street car was not discovered by him in time to have avoided the collision, by the exercise of reasonable care in the respects submitted in issues Nos. 19, 22, 25, and 28, a finding convicting deceased of contributory negligence under either of the latter issues, in our opinion, would have been inconsistent and incongruous, because deceased was not required to exercise care in the respects mentioned until discovering the approach of the street car and realizing the imminence of a collision. So we conclude that the findings, acquitting deceased of contributory negligence in failing to adopt the precautionary measures mentioned in these issues, are not inconsistent with the finding that he was guilty in failing to keep a proper lookout for the approaching street car. Respondents contend that mandamus will not issue to control the judicial discretion of a trial court as to the nature or character of the judgment that should be rendered. The general rule is as announced, and we have found dictum in cases of the nature of the one under consideration to the effect that, where there is a reasonable doubt as to the existence of a conflict in the jury findings, “it might be said that the court could find such conflict in the exercise of judicial discretion.” Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296, 300. But when can it be said that a reasonable doubt exists? The law books furnish no rule as a guide in determining the matter. We think each case presents a separate and distinct problem. The findings of a jury are either consistent and reconcilable or inconsistent and irreconcilable; one judicial tribunal may determine the question one way, and another to the contrary. However, we all agree that, where an irreconcilable conflict does exist, a mistrial should be declared, but in the absence of such conflict, the statute (article 2211, R. S.1925, as amended by Acts 1931, c. 77, § 1 [Vernon’s Ann.Civ.St. art. 2211]) mandatorily directs that “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 to the party all the relief to which he may be entitled either in law or equity.” The findings of a jury based upon evidence constitute the undisputed facts of the case, hence no room for the.exercise of a judicial discretion could exist, the question presented being one purely of law arising on undisputed facts; and where, as in the instant case, the appellate court holds that the findings are consistent and reconcilable, the trial court should be directed to perform its statutory duty; that is, to render judgment in conformity to the verdict. This we think is the doctrine underlying all of the decisions where appellate courts have granted writs of mandamus compelling trial courts to render judgments in conformity to verdicts. See Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875; Stewart v. Bush (Tex.Civ.App.) 53 S.W. (2d) 842; Southland-Greyhound Lines v. Richardson (Tex.Com.App.) 86 S.W.(2d) 731; Swann v. Wheeler (Tex.Com.App.) 86 S.W. (2d) 735. *423 The writ of mandamus will issue in accordance with the prayer of relator’s petition.