American Asphalt Co. v. O'Rear

• Decision Date: 09 July 1931
• Docket Number: No. 2553.,2553.
• Citation: 41 S.W.2d 322
• Parties: AMERICAN ASPHALT CO. v. O'REAR.
• Court: Texas Court of Appeals

41 S.W.2d 322

AMERICAN ASPHALT CO. v. O'REAR.

No. 2553.

Court of Civil Appeals of Texas. El Paso.

July 9, 1931.

Appeal from District Court, Winkler County; J. A. Drane, Judge.

Action by Morris O'Rear against the American Asphalt Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

See also (Civ. App.) 36 S.W.(2d) 779.

Leachman, Gardere & Bailey, of Dallas, for appellant.

J. B. Cotten, of Crane, Gary & Davenport, of Wink, and Thomas & Coffee, of Big Spring, for appellee.

PELPHREY, C. J.

This suit was filed by appellee against appellant in the district court of Winkler county to recover damages for injuries to himself, and on account of the death of his wife.

Appellee alleged that during the month of September, 1929, appellant was engaged in the construction of a road between Monahans and Kermit, Tex.; that on the night of September 13, 1928, while he and his wife were riding in a Ford roadster automobile on said road going in the direction of Kermit, they suddenly came upon a barricade across said road, with no lights thereon; that the driver of the car was unable to stop the car because of loose gravel placed on the roadway by appellant, and that in attempting to stop the car it went off the road and into the borrow pit, turned over, and in so doing injured him and his wife; that as a result of such injuries he was totally and permanently disabled, and his wife later died.

The grounds of negligence upon which he sought to recover, were: 1. A failure to place signs on the highway, including red lights at nighttime, of sufficient size and brightness to warn travelers upon the highway coming from the south of the condition of the road; (2) failing to keep a watchman at all hours of the nighttime to maintain proper lights and signs, and to direct travelers coming from the south; (3) failing to maintain and provide a suitable byroad or detour for the traffic; (4) failing to work down the steep incline of the roadbed, so that traffic could go off the roadbed and into the borrow pit safely; and (5) failing to maintain the roadbed in front of the barricade in such condition that cars with good brakes could stop before colliding with the obstructions placed thereon by appellant.

Appellant answered by general demurrer, certain special exceptions, a general denial, and a plea of contributory negligence. In response to special issues, the jury found: (1) That appellee sustained personal injuries in the accident; (2) that appellant did not fail to maintain warning signs south of the barricade which could, by the use of ordinary care, be seen and observed; (3) that appellant did not fail to maintain a sufficient light on the barricade; (4) that appellant failed to provide a detour or byroad with a safe descent from the roadbed thereto; (5) that such failure was negligence and the proximate cause of the damages sustained by appellee; (6) that loose rock and gravel were spread over the roadbed for a distance of twenty to thirty feet from the barricade; (7) that the maintaining of such rock and gravel by appellant was negligence and the proximate cause of the damages sustained by appellee; (8) that the accident was not unavoidable; (9) that appellee kept a proper lookout for his safety at the time and on the occasion in question; (10) that the automobile was traveling at a speed of from 25 to 28 miles per hour immediately prior to the accident; (11) that such speed was not negligence and was not a proximate or contributing cause of the accident; (12) that appellee did not protest to the driver of the car as to the rate of speed at which it was being driven; (13) that his failure to protest was not negligence and was not a proximate or contributing cause of the accident; (14) that the lights on the automobile were sufficient to illuminate the highway a safe distance ahead under the conditions; (15) that appellee could not, by the use of ordinary care, have discovered the barricade in time to avoid the accident; (16) that $4,900 would fairly compensate appellee for his injuries; and (17) that $2,000 would fairly compensate him for the loss of his wife.

Upon such findings, the court rendered judgment in favor of appellee for $6,900, and the Asphalt Company has appealed.

Opinion.

Appellant's propositions upon which it seeks a reversal of the judgment are, in substance: (1) That it was entitled to an instructed verdict; (2) that, upon the findings of the jury, judgment should have been rendered in its favor; (3) that the court erred in refusing to permit it to withdraw its announcement of ready and not proceed until the minor daughter of the deceased wife was made a party to the suit; (4) that its requested issues 3, 4, and 5 should have been submitted; (5) that issues 8, 9, 10, 11, 12, 13, 14, and 31 were improperly submitted; (6) that "proximate cause" was not properly defined; (7) that the evidence being insufficient to sustain the findings of the jury on issues 8, 9, 10, 11, 12, and 13, the court should have set the verdict aside and granted a new trial; and (8) that a new trial should have been granted by reason of certain improper argument of counsel for appellee.

At the conclusion of appellee's testimony, appellant moved to be allowed to withdraw its announcement of ready in the case and not to proceed in the trial of the case until Ethel May O'Rear, who the evidence discloses was a minor daughter of the deceased wife of appellee, had been made a party.

This motion was overruled by the...