Alexander v. Appell Drilling Co.
| Decision Date | 26 April 1956 |
| Docket Number | No. 3366,3366 |
| Citation | 290 S.W.2d 377 |
| Parties | Mary ALEXANDER, Appellant, v. APPELL DRILLING CO. et al., Appellees. |
| Court | Texas Court of Appeals |
Dean B. Kirkham, Corpus Christi, Sam H. Burris, Alice, for appellant.
Lewright, Dyer, Sorrell & Redford, Corpus Christi, Perkins, Floyd & Davis, Alice, for appellees.
Appellant, plaintiff below, brought this action under our Wrongful Death Statute for damages which she alleged she suffered by reason of the death of her son Grady Alexander, who was killed in an automobile truck collision on a public highway which had two triaffic lanes. The accident occurred at night on the 17th of October, 1954. Her son was traveling south on State Highway No. 59 in a 1953 model Pontiac Sedan. At about 14 miles from Hebronville his car collided with a loaded truck traveling north and driven by an employee of appellee.
The jury in its verdict found substantially that the truck was being operated partially on the left or wrong side of the highway at the time of the accident, and that such operation was negligence and a proximate cause of the collision; that the driver of the truck failed to keep a proper lookout, and his failure so to do was a proximate cause of the collision; that the truck driver failed to keep proper control of his truck, and that such failure was a proximate cause of the collision; that at the time of the collision the truck was not being driven at a rate of speed in excess of that which an ordinarily prudent driver, in the exercise of ordinary care, would have driven under the same or similar circumstances; that the Pontiac was not being operated partially on its left or wrong side of the highway; that the driver of the Pontiac failed to keep a proper lookout, and that such failure was a proximate cause of the collision; that the driver of the Pontiac did not fail to keep a proper control of his car; that the Pontiac was being driven at a rate of speed in excess of that which an ordinarily prudent driver, in the exercise of ordinary care, would have driven under the same or similar circumstances, and that such act was a proximate cause of the collision; that Grady Alexander was driving his Pontiac at a rate of speed in excess of 55 miles per hour, and that such act was a proximate cause of the collision; that Grady Alexander failed to dim his lights on his Pontiac, and that such failure was negligence, but that such negligence was not a proximate cause of the collision; that the collision was not the result of an unavoidable accident. The jury found the reasonable expense incurred in the funeral and burial of Grady Alexander to be the sum of $1,200, and found that Mrs. Alexander had sustained a loss by his death in the sum of $9,964. The court granted appellees' motion for judgment on the verdict of the jury and overruled plaintiff's motion for new trial, and appeal was perfected to the San Antonio Court of Civil Appeals, and is here on transfer order of our Supreme Court.
Appellant assails the judgment on what she designates as six points. They are substantially: (1) The court erred in permitting witnesses Choate and Moore, as experts, to invade the province of the jury and to testify to their speculations, conclusions and opinions to the effect that the Pontiac was traveling at a left forward angle and not straight ahead at the time of the impact and to give their versions as to what path or course the respective vehicles will or will not take or what they will do upon impact; (2 and 3) the court erred in overruling plaintiff's motion for new trial because Special Issues 13 and 14 on 'lookout' are without sufficient support in the evidence and because 'lookout' of Grady Alexander as a matter of law under the circumstances was not a proximate cause of the collision; (4, 5 and 6) the court erred in overruling plaintiff's motion for new trial because Special Issues 18, 19 and 20 on 'speed' are without sufficient support in the evidence, and further, what evidence there was on speed was incompetent as a matter of law, and because the rate of speed of the Pontiac as matter of law under the circumstances was not a proximate cause of the collision.
Appellee's counter points are to the effect that (1 and 2) the testimony of the witnesses Choate and Moore assigned as error related only to the position of the vehicles at the time of the impact and had no bearing on the issue of lookout and speed resolved against Grady Alexander, and hence, if erroneously admitted, was harmless error; (3) appellant failed to object to the introduction of the testimony complained of in appellant's Point 1 and therefore the error, if any, was waived; (4 and 5) there was evidence to support the jury's finding that Grady Alexander failed to maintain a proper lookout and that same was a proximate cause of the collision and the jury's finding that Grady Alexander failed to maintain a proper lookout was a proximate cause of the collision is binding on the appellate court; (6 and 7) there was competent evidence to support the jury's finding as to the speed of the Alexander vehicle and that such speed was a proximate cause of the collision and the jury's finding of the speed of such vehicle being a proximate cause of the collision is binding on the appellate court.
Since the jury convicted the driver of the Pontiac of failure to keep a proper lookout, and found that such failure was a proximate cause of the collision, and further found that the driver of the Pontiac was driving said car at a rate of speed in excess of that which an ordinarily prudent driver, in the exercise of ordinary care, would have driven under the same or similar circumstances, and that such act was a proximate cause of the collision, and further found that Grady Alexander was driving his Pontiac at a rate of speed in excess of 55 miles per hour, and that such act was a proximate cause of the collision, such findings of the jury are binding upon the Court of Civil Appeals if there is any evidence of probative force to support them, and are decisive of this cause, and the plaintiff cannot recover notwithstanding the driver of the truck was guilty of negligence that proximately caused the accident. That is to say, it is well settled that we do not have the doctrine of comparative negligence in Texas. No rule is better settled than the one to the effect that if there is evidence of probative value to sustain the findings of the jury, the appellate court is bound by such findings. See Lynch v. McLendon, Tex.Civ.App., 283 S.W.2d 88, point 3 (no writ history) and cases there collated.
Testimony was tendered to the effect that a truck tractor, with trailer attached, owned by appellee Drilling Company and driven by Wm. Russell Jones, its employee, was proceeding north on Highway 59, and a Pontiac driven by Grady Alexander, son of plaintiff, was proceeding in the south traffic lane. The trailer attached to the truck was loaded with oil field pipe and the overall weight of the truck, trailer and pipe was approximately 48,000 pounds; that Grady Alexander had spent the day at a picnic near Mathis and at that picnic he consumed an estimated three or four cans of beer; that he was under the influence of liquor but was not drunk; that Alexander left the home of Mrs. English at Mathis at about 8:00 p. m. and made one stop at Alice, but the length of this stop is not given accurately but both sides seemed to think it was for only a few minutes. The accident occurred at a point 67 miles from Mathis and the clock on the Pontiac stopped at 8:55 p. m. The witness Forrester arrived at the scene of the accident at about 9:00. Alexander was instantly killed in the accident and the only eye witness who testified was the truck driver Jones. He testified to the effect that he could not estimate the distance between his truck and the Pontiac when he first saw its lights; that he was on the right hand side of the road; that he blinked his lights two or three times at the approaching automobile; that the Pontiac was 150 to 200 yards away when he decided the driver of the Pontiac was not dimming his lights; that he, the truck driver, was not driving more than 45 miles per hour, as the truck had a governor on it setting it at that speed and that he...
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...been drawn from the facts proved, the jury might have found in favor of the plaintiff."' Alexander v. Appell Drilling Co., 290 S.W.2d 377, 380, 382 (Tex.Civ.App.--Waco 1956, writ ref'd n.r.e.). As previously noted in this opinion, appellant had vehicles with lights turned on parked on the w......
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Arrington v. Paschall, 15938
...Willson, (Sup.) 150 Tex. 273, 239 S.W.2d 792; Dallas Ry. & Terminal Co. v. Bosher, Tex.Civ.App., 278 S.W.2d 357; Alexander v. Appell Drilling Co., Tex.Civ.App., 290 S.W.2d 377. Applying these well-established principles of law to the facts in this record, we find that the testimony of the w......
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