Allen v. Denk, 8123.

• Decision Date: 09 October 1935
• Docket Number: No. 8123.,8123.
• Parties: ALLEN et al. v. DENK et al.
• Court: Texas Court of Appeals

87 S.W.2d 303

ALLEN et al. v. DENK et al.

No. 8123.

Court of Civil Appeals of Texas. Austin.

October 9, 1935.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Suit by Mrs. O. G. Frels, individually and as executrix of the estate of O. G. Frels, deceased, and as next friend for her minor children, against Bruno Denk and others, wherein plaintiff's pleadings were amended to show change of her name to Mrs. W. H. Allen, and her husband joined pro forma, and wherein defendants filed a cross-action. Judgment for defendants, and plaintiffs appeal.

Affirmed in part and in part reversed and remanded.

D. A. Frank and W. P. Bondies, both of Dallas, for appellants.

C. C. Jopling, of LaGrange, and Durell Miller, of Yoakum, for appellees.

BAUGH, Justice.

Suit was by Mrs. O. G. Frels, individually and as executrix of the estate of O. G. Frels, deceased, and as next friend for her minor children, against Bruno Denk, for damages, because of the death on September 15, 1932, of O. G. Frels, resulting from a collision between a Ford car driven by Frels, and a truck loaded with gravel driven by Denk on a state highway in Fayette county, Tex. Denk denied liability for such injuries, alleged that same were caused by the negligence of Frels, and by cross-action sued Mrs. Frels as independent executrix of Frels' estate, for damages for personal injuries to himself and damages to his truck resulting from said collision. Subsequent to filing said suit Mrs. Frels married W. H. Allen, and the pleadings were amended to show such change of name. The case was tried to a jury, and at the close of the evidence the court instructed a verdict in favor of Denk on Mrs. Allen's suit against him; and submitted to the jury only the amount of Denk's damages. That is, in effect, instructed a verdict in favor of Denk on his cross-action, leaving to the jury only the amount of the damages. In answer to these issues, the jury found Denk's damages, both for personal injuries and to his truck, to be in the aggregate sum of $8,630, and judgment was rendered in favor of Denk against Mrs. Allen, as executrix of the estate of O. G. Frels, accordingly. From said judgment, this appeal is prosecuted. Subsequent to its rendition, Denk filed a remittitur of $2,000, which remittitur is brought forward in the transcript.

The first contention of appellant, variously raised, is that the trial court erred in holding that Frels was guilty of negligence as a matter of law. We have carefuly read the entire statement of facts and find no error in this. While there were some discrepancies in the testimony of the several witnesses as to distances and the rates of speed of the vehicles involved, the following material facts were shown without any substantial conflict: Frels was returning from LaGrange to Goliad on highway No. 73 a few miles out of LaGrange, when the collision occurred. At that point the highway ran northeast and southwest. Frels was going southwest. Many trucks were then being operated over the highway hauling gravel for highway construction, the empty trucks at this point traveling southwest, and the loaded trucks, of course, traveling in the opposite or northeasterly direction. Frels had been running behind two empty trucks. In ascending a rather steep hill on the road, and just before reaching the crest of it, at a distance variously stated by witnesses as being from 45 feet to 135 feet from the top of the hill, Frels pulled out from behind the truck ahead of him, over onto his left-hand side of the road, and undertook to pass around such truck at a point just below the crest of the hill. At the same time Denk, driving his own truck loaded with gravel, came over the crest of the hill, going northeast. Denk, who was driving on his right-hand side of the road, upon discovery of the approach of Frels on the latter's left-hand side of the road, pulled his truck to the right, almost to the ditch on that side, and applied his brakes. Just before he could bring it to a stop the collision occurred, about opposite the empty truck which Frels was attempting to pass. The pavement at this point was about 18 feet wide with gravel shoulders of a few feet wide betwen the pavement and the ditches on the sides. The empty truck which Frels undertook to pass was on its right-hand side of the road. The left front wheel of Frels' car struck the left front wheel of Denk's truck. At the point of collision the front wheels of Denk's truck were entirely off the pavement and the left rear wheel almost off. We think it conclusively appears that Frels was driving at a speed in excess of 45 miles per hour at the time, and had pulled over onto his left-hand side of the road, where the collision occurred, at a place and time where and when his unobstructed view ahead was less than 150 feet. Under these circumstances, he was violating both the speed limit prescribed by law (Acts 1929, c. 42, § 18, as amended by Acts 1931, c. 282, p. 507, § 9); and the law of the road (article 801, P. C.); and was clearly guilty of negligence as a matter of law. McCall v. Frenzel (Tex. Civ. App.) 32 S.W.(2d) 965; Texas Co. v. Betterton (Tex. Civ. App.) 56 S.W.(2d) 663. The verdict instructed by the trial court as to the suit by plaintiffs against Denk was, therefore, correct.

Under the circumstances, it was not error for the trial court to refuse to submit to the jury the issue of unavoidable accident. "An unavoidable accident can occur only in the absence of negligence." See Beaumont S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.(2d) 899, 903, and cases there cited.

We think the trial court erred, however, in refusing to submit to the jury, over the objection of appellants, the issue of contributory negligence on the part of Denk. In response to Denk's cross-action, appellants pleaded contributory negligence of Denk in the rate of speed at which he was driving his truck as he approached the crest of the hill from the opposite direction; in failing to slow down as he passed the empty truck just ahead of the one Frels was attempting to pass; in not keeping a proper lookout as he drove over the crest of the hill; and in not giving any warning signal of his approach to the crest of the hill. It is not controverted that the horizon of Denk's vision of the road ahead of him was just as limited as he came up the hill from the opposite direction, as was that of Frels who turned out into the wrong side of the road. It was his duty to keep his truck under reasonable control within his line of vision, though driving on the right side of the road. There was testimony that as he approached the crest of the hill just beyond which he collided with Frels' car, he was driving at a rate of...