Abilene Christian College v. Kerby, 4580
| Decision Date | 08 December 1972 |
| Docket Number | No. 4580,4580 |
| Citation | 488 S.W.2d 496 |
| Parties | ABILENE CHRISTIAN COLLEGE, Appellant. v. James Ray KERBY, Appellee. |
| Court | Texas Court of Appeals |
Pope, Dickenson, Batjer & Glandon (Roger L. Glandon), Abilene, for appellant.
Robinson, Wilson & Holloway (James E. Robinson), Abilene, for appellee.
James Ray Kerby recovered a judgment against Abilene Christian College for damages resulting from an intersectional collision and Abilene Christian College has appealed.
The jury found the Abilene Christian College driver guilty of running a red light and failure to keep a proper lookout and that such actions were a proximate cause of the collision. The jury also found that the Abilene Christian College driver failed to make timely application of his brakes, that this was negligence and a proximate cause of the collision. The jury in answer to Issues 21, 22 and 23 found:
'SPECIAL ISSUE NO. 21:
Do you find from a preponderance of the evidence that the conduct of James Ray Kerby in driving with his door open on the occasion in question was negligence?
Answer 'We do' or 'We do not'.
Answer: We do
In the event that you have answered the foregoing special issue 'We do', you will answer the following special issue; otherwise, you need not answer same.
SPECIAL ISSUE NO. 22:
Do you find from a preponderance of the evidence that such negligence was a proximate cause of some or all of plaintiff's injuries?
Answer 'We do' or 'We do not'.
Answer: We do
In the event that you have answered the foregoing special issue 'We do', then you will answer the following special issue; otherwise, you need not answer same.
SPECIAL ISSUE NO. 23:
What percentage of the injuries received by James Ray Kerby as a result of the accident in question were sustained as a result of such negligence?
Answer: 35%'
Abilene Christian College contends the court erred in not rendering judgment for it because the jury found Kerby guilty of contributory negligence which was a proximate cause of some or all of his injuries.
Kerby filed a motion to disregard the jury's answers to Issues 21, 22 and 23 because the findings had no support in the evidence and are not final issues; that comparative negligence is not the law in Texas and there is no authority for submitting said issues. The court overruled this motion and Kerby has presented cross-points in which he contends there is no evidence to support the answers to Issues 21, 22 and 23. He also contends said answers do not constitute mitigation of damages, avoidable consequences or contributory negligence.
In Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup.1969), the Court said:
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Kerby v. Abilene Christian College
...collision. Based on jury findings, the trial court rendered judgment for the Plaintiff which was reversed and rendered for the Defendant. 488 S.W.2d 496. We reverse the judgments of the courts below and render judgment for Plaintiff Kerby sued Abilene Christian College for the injuries he r......