Ashman v. Smith

• Decision Date: 25 March 1965
• Docket Number: No. 14493,14493
• Citation: 389 S.W.2d 509
• Parties: Martin ASHMAN, Appellant, v. William G. SMITH et al., Appellees.
• Court: Texas Court of Appeals

Page 509

389 S.W.2d 509

Martin ASHMAN, Appellant, v. William G. SMITH et al., Appellees.

No. 14493.

Court of Civil Appeals of Texas, Houston.

March 25, 1965.

Rehearing Denied April 29, 1965.

McClure & Lucas, Houston, and Harold Lloyd, Houston, of counsel, for appellant.

Talbert, Giessel, Cutherell, Barnett & Stone, Thomas W. Foster, Houston, for appellees.

BELL, Chief Justice.

Appellant sued William G. Smith and Zero Refrigerated Lines, for whom Smith was driving a truck, to recover damages resulting from injuries received in an automobile collision. A jury acquitted Smith of any negligence, acquitted appellant of contributory negligence, and found the collision was the result of an unavoidable accident. Judgment on the verdict was that appellant take nothing.

The court submitted the following issues inquiring of negligence of the part of Smith:

1. Whether he was driving at a excessive rate of speed.

2. Whether he failed to make timely application of brakes.

3. Whether his having driven into the intersection when the traffic control signal facing him showed a red light was negligence.

4. Whether he failed to make an effort to avoid the collision by turning his vehicle.

5. Whether he failed to keep a proper lookout.

Too, the court submitted discovered peril and the jury found that Smith did not discover appellant's perilous position in such time as to be able to avoid the collision. The jury also found Smith was acting in an emergency and in such emergency acted prudently.

Appellant for reversal asserts that the jury's answers to each of the above issues are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. In passing on whether this is true of the jury's answers, we must review all of the evidence. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

The evidentiary facts are largely undisputed. The problem arises over the inferences to be drawn from them.

The collision occurred on September 15, 1962, at the intersection of McCarty Drive and a service road on the west side of what is known as North Loop, an interstate highway skirting the City of Houston. At this time the North Loop was being constructed. It was not, at the intersection with McCarty, in use. The service road was in use for traffic going north and south. The service road was 27 feet in width. There was a service road on the east side of the North Loop, but it was not in use and was closed to traffic. McCarty Drive at the intersection runs east and west. It is a fourt-lane highway. North Loop crosses over McCarty on an overpass (we sometimes refer to it as an underpass). The width of the overpass from east to west is not shown, but testimony is that the North Loop was designed to carry three lanes of traffic each way. McCarty intersects the service road at a right angle. Suspended above and at the center of the intersection was a traffic control signal. Its height above the street is not shown. The streets at the intersection and for a long distance on either side are straight and level.

Appellant, just before the collision, was driving his automobile south on the service road at about 11 p. m. When he reached the intersection with McCarty the traffic control signal facing him was red. He stopped to await a change in the signal to green. As the signal changed to green, appellant slowly moved forward and the truck driven by Smith ran into the left side of appellant's automobile, causing substantial damage tos the car and causing parsonal injury to appellant. It is undisputed that Smith ran a red light. Smith was driving a refrigerated truck. The truck consisted of a tractor and trailer. The over-all length was 50 feet. He had a load of about 35,000 pounds of frozed sweet potatoes. The vehicle with its load weighed about 70,000 pounds. There were 18 wheels on the tractor and trailer. The air brakes, when applied, would take effect on 16 wheels--all except the two front wheels. He was driving west on McCarty. The established speed limit was 45 miles per hour. There is some evidence, but of an indefinite nature, that there was some construction going on along the shoulders to McCarty. There is no evidence of probative force, however, that the speed limit of 45 miles per hour had been reduced because of the construction.

Mr. Smith testified that as he was proceeding west along McCarty and was at a point about 300 or 350 feet from the overpass, he noticed a sign reading 'Signals Ahead'. About that time he looked up ahead and saw the traffic signal west of the overpass change from red to green. It is here to be noted that at one point he testified he didn't recall whether he saw the change take place at the 300 to 350 foot point but it was about at that point. Whether he observed the light again before reaching the western edge of the overpass does not appear in the record. At what distance from the east side of the underpass the light would become obscured is not shown, but it would because of the overpass be hidden for a time from the traveler. When he learned from the sign that signals were ahead, he reduced his speed to 30 miles per hour, which speed he maintained until he tried to stop the truck as his truck came out of the underpass on the west side. He, having seen the change of the signal light to green as it faced him, felt he had plenty of time to proceed through the signal before it turned red. He based this conclusion on his familiarity with the timing of signal lights generally. There is no evidence of what such timing generally is. There is evidence that this light was set so the green color would remain 20 seconds and the amber 5 seconds. There is no evidence that Smith knew of this timing. Smith had been over this route only once and it was about a year before the collision. He was in the lane next to the center line of McCarty. Just as he was coming out of he underpass he noticed the signal light had changed to red. He also saw appellant's car proceeding into the intersection. He threw on his brakes but could not stop in time to avoid the collision. He stated he was probably going 15 or 20 miles per hour at the point of impact. Forty feet of skid marks were left by the truck. He testified he could stop the truck in something just over 100 feet. It does not appear whether this distance included perception and reaction time. We rather doubt that it does.

The investigating officer testified that 20 feet of the skid marks were east of the east curb line of the service road and 20 feet were west. The point of impact was stated to have been from three to seven feet in the west half of the service road. While at one place the officer testified 20 feet of the skid marks were west of the east curb line and at another from three to seven...