Hicks Rubber Co. v. Harper (131 S.W.2d 749, 1939)

ALEXANDER, Justice.

This suit was brought by J. W. Harper against Hicks Rubber Company to recover damages for certain personal injuries alleged to have been sustained by plaintiff’s wife. A trial before a jury resulted in a verdict and judgment for the plaintiff for the sum of $10,000. The defendant appealed.

Appellant’s first major contention is that the court should have given an instructed verdict for the defendant because the evidence conclusively established as a matter of law that Mrs. Harper was guilty of contributory negligence which destroyed her right to recover. The evidence shows that one of defendant’s employees backed defendant’s truck up to the curb at a loading zone in a downtown business section for the purpose of unloading automobile tires. The truck was covered with a tarpaulin and the back-endgate was up in place. Mrs. Harper was walking along the sidewalk in the usual way. She had seen trucks unload at the place in question on previous occasions. She testified that when she saw that the tarpaulin was over the truck and that the endgate was in place, she did not think any attempt would be made at that time to unload the truck. When she got even with the backend of the truck, defendant’s agent threw an automobile tire out of the backend of the truck between the tarpaulin and the top of the endgate and across the sidewalk. The tire struck Mrs. Harper and knocked her down and injured her. The question of whether one is guilty of contributory negligence is usually for the jury and unless the act is made negligent by statute, or unless the facts are of such character that, reasonable minds could not differ as to the conclusions to be drawn therefrom, the court should not withdraw the question from the jury. 30 Tex.Jur. 832. The mere fact that Mrs. Harper walked along the sidewalk in a business section of the city at a time when the defendant’s truck was backed up to the sidewalk at a loading .zone does not raise contributory negligence on her part as a matter of law.

It is contended by appellant that the judgment for $10,000 is excessive. There is evidence to show that the automobile tire thrown by the defendant’s agent struck Mrs. Harper on the left side of the head or the left shoulder and knocked her to the sidewalk. The right side of her head struck a steel plate on the wall of the adjoining building. Her wrist and hips were slightly bruised and she was nauseated but was soon able to get up and leave the scene of the accident without assistance. The next day she was confined to her bed and remained in bed substantially all of the time for a period