Bailey v. Walker

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Bailey v. Walker, 163 S.W.2d 864 (Tex. App. 1942)
• Decision Date: 01 July 1942
• Docket Number: No. 11416.,11416.
• Parties: BAILEY et al. v. WALKER.

163 S.W.2d 864

BAILEY et al. v. WALKER.

No. 11416.

Court of Civil Appeals of Texas. Galveston.

July 1, 1942.

Rehearing Denied July 30, 1942.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Suit by Robert Walker and Harold Rush against G. A. Bailey and A. L. Bailey, allegedly doing business as partners under the name of G. A. Bailey & Son, for injuries sustained as the result of an automobile collision. From a judgment in favor of Robert Walker, the defendants appeal.

Affirmed.

Kemper, Hicks & Cramer, of Houston (F. Warren Hicks, of Houston, of counsel), for appellants.

John C. Henderson, of Angleton, for appellee.

GRAVES, Justice.

This statement from appellants' brief, adopted by the appellee, is accepted as a compliance with Rule 418(a), Texas Rules of Civil Procedure:

"This is a damage suit. Robert Walker, a passenger in a car being driven by his co-plaintiff, Harold Rush, brought suit in the district court of Brasoria County, Texas against G. A. Bailey and A. L. Bailey, alleged to be doing business as partners under the name of G. A. Bailey & Son, for damages alleged to have been sustained as the result of the car in which he was riding having been driven into the trailer portion of a truck alleged to belong to the defendants, while same was parked completely off the paved portion of the highway on the north shoulder of the Alvin-Galveston highway. The case was transferred to the district court of Matagorda County on plea of privilege, where trial upon the merits before a jury, upon special issues, resulted in a verdict against the plaintiff, Harold Rush. After overruling defendants' motion for judgment non obstante veredicto, as well as defendants' motion for judgment notwithstanding the jury's answers to special issues Nos. 9 and 10, judgment was rendered for the plaintiff, Robert Walker, in the sum of One Thousand Nine Hundred Thirty-Three and 50/100 ($1,933.50) Dollars, on the verdict of the jury.

"The judgment, as well as the orders overruling defendants' motions for judgment, were entered on the 29th day of January, 1942. The term of the district court of Matagorda County ended on January 30th, and consequently it was not necessary to file a motion for a new trial. At the time of the entry of the judgment, as well as at the time of the Court's overruling defendants' motions for judgment, defendants gave notice of appeal, and duly and timely filed supersedeas bond on appeal. Harold Rush, the other plaintiff in the case, was denied any recovery on the verdict of the jury in the judgment rendered by the trial court, and has perfected no appeal."

Appellants' controlling points on appeal, while extended to seven in number, converge into these two main contentions:

(1) The court erred in refusing — at their request — to disregard the jury's answers to submitted issues 9 and 10, on the ground that there was no evidence to sustain either;

(2) The court further erred in overruling their seasonably presented motions for instructed verdict and judgment non obstante veredicto, on the ground that the appellee Walker was undisputedly shown to have been guilty of contributory negligence as a matter of law.

In other words, they earnestly and ably urge that this record conclusively shows, primarily, that there was no evidence of any actionable negligence on the part of their truck driver, and, secondarily, that "the undisputed evidence leaves no room for disagreement among reasonable minds that Walker's own negligence caused, or contributed to cause, the injuries received by him."

Neither of these presentments, it is determined, should be sustained, considering the condition this court finds the record to be in; at the very threshold, this résumé of at least the controlling circumstances under which the collision was shown to have occurred gives the resulting picture a decidedly different perspective from that appellants' brief alone reflects, to-wit:

On the night of June 1, 1941, around midnight, Harold Rush and the appellee, Robert Walker, were returning in a westerly direction from the Kit Kat Cafe on the Alvin-Galveston Highway to their home in Angleton, Texas, in an automobile driven by Harold Rush. About three miles east of Alvin, while driving at a rate of speed of from thirty to sixty miles an hour, they left the paved portion of the highway, and ran into the truck belonging to the appellant, G. A. Bailey, while it was parked on the north shoulder of the highway and completely off the paved portion, with its cab and the brightly-burning lights thereof pointing eastwardly toward Galveston, while its long trailer — loaded with cattle — extended back northward from and almost at right angles with the cab, across the ditch paralleling the north line of the highway, and practically to the fence on the outer line of the right-of-way. Appellants' truck was thus parked on its own left-hand side of the highway looking toward Galveston, with its lights shining — slightly obliquely — in the eyes of anyone approaching along the highway from Galveston, which was the route being travelled by the appellee at the time of this accident, the bed or trailer of the truck being "jackknifed" at an approximate right-angle to the cab thereof, the cab and trailer together occupying practically all of the highway between the paved portion and the fence on the north right-of-way line of the road. The cab's headlights were shining eastward down the highway in such a manner as to blind one approaching the truck from Galveston. A witness for appellee, who drove down the highway from Galveston, testified that he observed the wreck shortly after it had occurred, but after flares had already been put out in the vicinity of the truck. He testified that the lights of the truck blinded him, and that he could not see its bed as he approached. His car was a 1940 model Chrysler, equipped with sealed-beam headlights and a spotlight. The appellee's driver, Rush, testified that he turned to his own right in an attempt to avoid a collision and allow the appellants' truck to pass to his left; that is, he explained that he "took to the ditch", in an attempt to avoid a head-on collision. Both he and the appellee testified they could not tell what the object, whose lights they saw, was, whether or not it was moving or stationary, or the position in the highway it occupied.

In such an apparent exigency, the right turn was at least the privilege — if not indeed the bounden duty of the appellee and his driver — in the exercise of due care for their own as well as the safety of other possible travellers on the highway, under the requirement of Article 801 (B), Penal Code of Texas, that "vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other one-half of the road as nearly as possible."

The testimony further was sufficient to support a finding of ample time and opportunity within which appellants might have put out flares before, instead...