Alamo Motor Lines v. Maldonado

• Decision Date: 08 September 1954
• Docket Number: No. 12709,12709
• Citation: 271 S.W.2d 693
• Parties: ALAMO MOTOR LINES, Inc., Appellant, v. Phillip MALDONADO, Appellee.
• Court: Texas Court of Appeals

Page 693

271 S.W.2d 693

ALAMO MOTOR LINES, Inc., Appellant, v. Phillip MALDONADO, Appellee.

No. 12709.

Court of Civil Appeals of Texas, San Antonio.

Sept. 8, 1954.

Rehearing Denied Oct. 6, 1954.

J. Alex Blakeley, Dallas, House, Mercer & House, San Antonio, Carey Williams, Houston, for appellant.

Arthur A. Domangue, A. R. Sohn, San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Phillip Maldonado against Alamo Motor Lines, Inc., seeking to recover damages for personal injuries and damages to his automobile, alleged to have been caused by the negligence of the employees of the defendant when plaintiff's auto collided with a protruding corner of a trailer that had been accidentally dropped from a tractor on Probandt Street in San Antonio, Texas.

The trailer had accidentally become disengaged from defendant's tractor and after dropping came to a stop at an angle facing northeast on Probandt Street, in such a manner that a portion of the left rear corner extended across the center line of the street and into the southbound traffic lane. Plaintiff, while driving south on Probandt Street about three o'clock on the morning of August 17, 1951, and while on his right side of the street, struck the left rear corner of the dropped trailer and suffered both personal injuries and damages to his automobile.

The trial was to a jury and, upon the jury's answers to the issues submitted, judgment was rendered in favor of plaintiff in the sum of $13,250, from which judgment Alamo Motor Lines, Inc., has prosecuted this appeal.

Appellant, speaking generally, presents two points, first, that appellee was guilty of contributory negligence as a matter of law, notwithstanding the findings of the jury to the contrary, and, second, that counsel for appellee engaged in improper argument to the jury which constituted reversible error.

It is well settled law in this State that, as a general rule, the question of whether a plaintiff is guilty of contributory negligence is usually a question of fact to be determined by the jury. Swiff v. Michaelis, Tex.Civ.App., 110 S.W.2d 933; Coleman v. West, Tex.Civ.App., 116 S.W.2d 870; McCullough Box & Crate Co. v. Liles, Tex.Civ.App., 162 S.W.2d 1055; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715; Humble Oil & Refining Co v. Ooley, Tex.Civ.App., 46 S.W.2d 1038; Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308; Oil City Iron Works v. Stephens, Tex.Civ.App., 182 S.W.2d 370; Horton v. Benson, Tex.Com.App., 277 S.W. 1050; Texas & N. O. Ry. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683.

However, where a plaintiff fails to use any care for his own safety and it is apparent that if he had used ordinary care the accident would not have happened, then he is guilty of contributory negligence as a matter of law. But if he uses some care for his own safety and offers some explanation, comporting with reason, why he could not see the object with which he collided in time to avoid the impact, then he is not guilty of contributory negligence as a matter of law. Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308; Gifford v. Fort Worth & D. C. Ry. Co., 151 Tex. 282, 249 S.W.2d 190; Lone Star Gas Co. v. Fouche, Tex.Civ.App., 190 S.W.2d 501.

In passing on the question of whether the jury findings should be disregarded and the appellee held to be guilty of contributory negligence as a matter of law, we must view the evidence in a light most favorable to appellee; conflicts of evidence must be disregarded and every reasonable inference under the evidence favorable to appellee must be indulged in.

Viewing the evidence in this manner, we come to the conclusion that appellee used care for his own safety, in that he applied his brakes, took his foot off the gas accelerator, and undertook to turn his automobile to the right when he discovered the end of the trailer in his path. Whether such care was that of a reasonably prudent man under all of the circumstances in this case was a matter to be passed upon by the jury, and the jury has done so in appellee's favor.

The jury found that appellee was operating in a sudden emergency. We think the evidence supports this finding. About fifty or seventy-five feet north of where the collision occurred a railroad track crosses Probandt Street and causes a rise of some three or four feet in the street. This would cause appellee's automobile lights, as he traveled south on Probandt Street, to be thrown first high and then low. Appellant's tractor from which the trailer had...