On the 30th day of April, 1934, the majority of this court filed an opinion in this cause reversing the judgment rendered for Leverkuhn, the defendant in the trial court, and remanding the cause.
Being of opinion that the majority erred in ordering a reversal of said judgment and in not affirming same, I respectfully enter my dissent to the order of the majority.
That appellant Marx, plaintiff in the trial court, was, on the 16th day of June, 1930, driving an automobile on a public highway westward from the city of Goose Creek to Houston; that he met an autotruck being driven by appellee Leverkuhn in the opposite direction; that he undertook to pass the truck driven by Leverkuhn at a rate of speed of 25 or 30 miles an hour; and that such speed was not reduced until he caused his automobile to collide with the truck driven by Leverkuhn — are facts undisputed.
Marx instituted this suit against Leverkuhn to recover damages which he alleged he suffered by reason of said collision, alleging that the collision resulted by reason of various acts of negligence of Leverkuhn.
Appellee Leverkuhn pleaded, among other things, that appellant was at the time of the collision traveling at a high and dangerous rate of speed and failed to slow down his automobile to 15 miles per hour while attempting to pass the truck driven by Leverkuhn, and that in such failure he violated the provisions of article 794 of our Penal Code, and thereby contributed to bring about the collision and the damages alleged by Marx.
Appellant Marx did not plead any excuse or justification for the violation of article 794 of our Penal Code.
It may be conceded that the verbiage of article 794 of our Penal Code implies that want of knowledge of an approaching car, after the exercise of reasonable care to discover it, would excuse one for passing it at a rate of speed of more than 15 miles per hour. But in such case, when, as in the present case, the evidence leaves the question as to whether or not the party undertaking to pass at the time saw the car he was about to pass at a rate of speed in excess of that prescribed by article 794 of our Penal Code, such question is one for the jury or judge trying the case to determine.
There is an abundance of evidence which would justify a finding that appellant Marx did see the truck he was about to pass in time for him to have slowed down his car to 15 miles per hour before colliding with the truck of Leverkuhn. He concededly undertook to pass the truck at a rate of speed of 25 or 30 miles per hour. If appellant saw the truck as he attempted to pass it, he violated the provisions of said article 794, and under the decisions of our courts was guilty of negligence as a matter of law. St. Louis, B. M. Ry. Co. v. Price (Tex.Com.App.) 269 S.W. 422,432; Carvel v. Kusel (Tex.Civ.App.) 205 S.W. 941; Flores v. Garcia (Tex.Civ.App.) 226 S.W. 743; Moss v. Koetter (Tex.Civ.App.)249 S.W. 259; Orchin v. Fort Worth P. E. Co. (Tex.Civ.App.)43 S.W.2d 308, 310; Pennington Produce Co. v. Wonn (Tex.Civ.App.)49 S.W.2d 482.
In the Orchin Case, above cited, it is said: "In response to issue No. 18, the jury found as a fact that deceased failed to slow down his car to a speed of 15 miles per hour in attempting to pass the truck driven by Scott, and further found, in response to issue No. 18a, that such failure on the part of deceased proximately contributed to and caused his injury. The effect of this finding is that deceased violated a provision of article 794 of the Penal Code, which required him to slow down to a speed not greater than 15 miles per hour. The violation of this statute on the part of deceased constituted negligence, and, when the jury found that this negligence proximately contributed to his injury, it thereby nullified the legal effect of the three separate acts of negligence, found to have been committed by Scott, and each found to be a proximate cause of deceased's injury."
In the present case, in answer to special issues 13 and 14 submitted, the jury found from a preponderance of the evidence that appellant Marx, upon approaching and undertaking to pass the truck of Leverkuhn, failed to slow down the speed of his automobile to 15 miles per hour, and that such failure was a proximate cause of the injuries and damage complained of by him.
The violation of article 794 of the Penal Code of this state, requiring automobiles in passing each other traveling in opposite directions on public roads to slow down to 15 miles per hour, is negligence as a matter of law, and when such negligence is a proximate cause of the injuries and damages sued for, the violators of such article cannot recover therefor. In order to excuse or justify such violation of article 794, the party so violating it must plead, prove, and secure a finding of *Page 954 facts excusing or justifying his violation of that article. And in the event such claimant fails to discharge such burden, he waives his right to rely upon any excuse or justification for his violation of that article of the Penal Code of this state.
Conceding that the evidence would have supported a finding either way, that Marx did or did not see the truck as he attempted to pass it, as he did not request the submission of such issue he waived the same and left it for the determination of the trial judge, and in such case it should be presumed that the judge found that Marx did see the truck in time to slow down his car so as to prevent the collision.
In Gulf, C. S. F. Ry. Co. v. Shieder, 88 Tex. 152, at page 163,30 S.W. 902, 905, 28 L.R.A. 538, Judge Denman, speaking for the Supreme Court, said: "When the undisputed evidence adduced on the trial establishes prima facie as a matter of law contributory negligence on the part of plaintiff, then the burden of proof is upon him to show facts from which the jury upon the whole case may find him free from negligence; otherwise the court may instruct a verdict for defendant, there being no issue of fact for the jury. Sanches v. Railway, 88 Tex. 117, 30 S.W. 431, and cases cited; Cassidy v. Angell, 12 Rawle I. 447 [34 Am.Rep. 6901; Houston T. C. Railway v. Sympkins, 54 Tex. 618 [38 Am.Rep. 632]."
By article 46 of our Penal Code it is provided as follows: "When the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission."
In West Texas Coaches v. Madi (Tex.Civ.App.) 15 S.W.2d 170, 175, after quoting the provisions of article 794 of the Penal Code, it is said:
"Conceding the facts to be that at the time of the collision the appellant's coach was proceeding at a speed in excess of 15 miles per hour, that would clearly make against the appellant a case of negligence per se under the above article, and nothing would remain for the jury to pass upon, except the determination of whether such speed at such time and place proximately caused the death of John Madi. Exceeding the statutory rate of speed upon the highway is unquestionably negligence per se. Moss v. Koetter (Tex.Civ.App.) 249 S.W. 259; Carvel v. Kusel (Tex.Civ.App.) 205 S.W. 941; Flores v. Garcia (Tex.Civ.App.)226 S.W. 743.
"There is nothing vague or uncertain about this statute, and by its provisions it is negligence per se for the operator of a motor vehicle to pass an approaching one at a rate of speed in excess of 15 miles per hour." See Pennington Produce Co. v. Wonn (Tex.Civ.App.) 49 S.W.2d 482,483.
For the reasons pointed out, I think the judgment of the trial court should be affirmed, and I therefore respectfully dissent from the order of the majority in reversing said judgment.
On Motion for Rehearing.