Beck v. Dallas Ry. Co.

WILLSON, C. J. (after stating the case as above). [1] Appellants insist a case of “discovered peril” was made by the findings of the jury numbered 1, 2, and 3, set- out in the statement above, and that the judgment therefore should have been in their favor, notwithstanding the finding of the jury that Mrs. Beck was guilty of contributory negligence. We think the contention should be overruled; for, as we construe the findings specified, it did not appear therefrom that the motorman actually knew that Mrs. Beck would be in a position of peril from the street ear if he moved it when and as he did. Without such knowledge on the motorman’s part, the case could not be one of “discovered peril.” Galveston, H. & S. A. Ry. Co. v. Price, (Tex. Com. App.) 240 S. W. 524. The finding numbered 1 was that the motorman saw Mrs. Beck’s automobile or knew1 of its “position and situation.” That finding furnished a sufficient basis for the finding numbered ⅞ that the motorman was guilty of negligence in moving the street car as he did; but we think, contrary to appellant’s view of the matter, it was not inconsistent with a lack of actual knowledge on the motorman’s part that the automobile would remain at the place where he saw it, and a lack of knowledge that if it did remain there the street car would hit it. It did not appear that the motorman knew anything about the position of the trucks in front of Mrs. Beck’s automobile, which she testified prevented her from moving it, and no; reason is apparent on the face of the record, as we view it, why the trial coux't did not have a right to find, if such a) finding was necessary to support his judgment, that it did not appear the motorman had actual knowledge of the peril Mrs. Beck was in from the movement of the street car. The contention hinted at, if not made, in appellants’ argument, that consideration should be given to the fact that Mrs. Beck’s negligence was slight, is not tenable. The doctrine of comparative negligence is not recognized as existing in this state in cases like this one is. The judgment is affirmed.