Bergeron v. City of Port Arthur

• Decision Date: 21 January 1954
• Docket Number: No. 3127,3127
• Citation: 264 S.W.2d 769
• Parties: BERGERON v. CITY OF PORT ARTHUR et al.
• Court: Texas Court of Appeals

Page 769

264 S.W.2d 769

BERGERON v. CITY OF PORT ARTHUR et al.

No. 3127.

Court of Civil Appeals of Texas, Waco.

Jan. 21, 1954.

Rehearing Denied Feb. 18, 1954.

John Lindsey, Port Arthur, Marcus & Weller, Beaumont, for appellant.

A. A. DeLee, City Atty., Port Arthur, Orgain, Bell & Tucker, Beaumont, for appellees.

TIREY, Justice.

This is a negligence case. Appellant brought this suit against the City of Port Arthur, a municipal corporation, Bert Davis and W. O. Minshew, each an employee of the Police Department, for damages sustained by appellant as the result of the death of his wife and personal injuries to himself produced by a collision between a car driven by appellant and a police car owned by the City of Port Arthur and operated by Bert Davis, accompanied by W. O. Minshew, a Night Captain, in the course of their duties as police officers of the City. The defense of governmental immunity was wavied and is not an issue here except so far as it concerns appellant's Bill of Exception No. 1, which is the basis of objections to allowance of twelve challenges on behalf of appellees. The City of Port Arthur filed cross-action over and against Bert Davis and W. O. Minshew in the event of judgment against it. A cross-action was also filed by defendant W. O. Minshew against appellant Bergeron. At the conclusion of the evidence the court overruled appellees' joint motion for instructed verdict.

The jury in its verdict found substantially (Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9) that the automobile driven by appellant was struck by a police car owned by the City and operated by defendant Davis in the course of his employment at an excessive rate of speed under the circumstances and that same was negligence and that such negligence was the proximate cause of the death of appellant's wife and at the time of the collision the driver of the police car was operating same at a rate of speed that endangered or was likely to endanger the lives and limbs of persons and the safety of property at such time and place, and that such conduct was negligence and that such negligence was a proximate cause of the death of appellant's wife, as well as the injuries and damages sustained by appellant, but that the driver of the police car did not fail to keep a proper lookout; (11) that the driver of the police car failed to have said car under proper control; (12) that such failure was negligence; (13) and was a proximate cause of the death of appellant's wife and the injuries sustained by appellant; and (14) that at the time of the entry of the police car the intersection of Woodworth Boulevard with Thomas Boulevard that a red traffic light on the northeast corner of the intersection was facing the police car; (15) that the driver of the police car failed to slow down as necessary for safety and to proceed cautiously across the intersection of Thomas Boulevard and Woodworth Boulevard in the face of the red signal light; (16) that such failure was negligence; (17) and a proximate cause of the death of appellant's wife and the damages and injuries sustained by appellant; (21) that Bert Davis, driver of the police car, in the exercise of ordinary care, could have seen appellant's car at a sufficient time and distance to have applied his brakes and reduced his speed until appellant's car had crossed the intersection; (22) that such failure was negligence; and (23) a proximate cause of the collision; (27) that appellant's wife died as the result of injuries sustained in the collision; (28) and fixed appellant's damages for loss in the death of his wife in the sum of $7,000; (29, 30) that appellant sustained personal injuries as the result of the collision in the amount of $7,500; and (31) fixed his damages for medicine and medical treatment at the date of trial at $250; and (32) fixed his damages to his car at the sum of $200; (33-A) that Bert Davis, the driver of the police car, was on an emergency call at the time of the collision; (33) that the police vehicle was equipped with a red light on the front of said vehicle, which was visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle; (34) that the red light on the front of the police vehicle was lighted as said police vehicle approached the scene of the collision in question; (35) that upon the immediate approach of the police vehicle to the scene of the collision an audible signal by siren was given; (36) that the failure of the plaintiff to yield the right of way to the police vehicle was a proximate cause of the collision in question; (37) that upon the immediate approach of the police vehicle on the occasion in question the plaintiff failed to drive his automobile to a position parallel to and as close to the right hand curb as possible; (38) but that such failure was not a proximate cause of the collision; (39) that upon the immediate approach of the police vehicle the plaintiff failed to bring his automobile to a stop; (40) that such failure of plaintiff was not a proximate cause of the accident; (41) that appellant did not bring his automobile to a stop at the intersection of Woodworth and Thomas Boulevards on the occasion in question; (44) that appellant did not make a left turn at the intersection when the police vehicle was so close as to constitute an immediate hazard; (46) that appellant, before changing the course of his vehicle on the occasion in question, failed to see first that there was sufficient space for such movement to be made in safety; and (47) that such failure was the proximate cause of the collision; (48) and that appellant's failure to look in the direction from which the police car was approaching before driving into the east lane of Woodworth Boulevard was a proximate cause of the collision in question; (49) but found that the failure of appellant to look in the direction from which the police car was approaching before driving into the east lane of Woodworth Boulevard was not negligence; and (50) that appellant did not fail to reduce the speed of his car immediately before the accident; (51) and that the failure of appellant to reduce the speed of his automobile was not negligence; (53) that the failure of appellant to see the red light on the front of the police vehicle was not negligence; (55) that appellee Minshew did not sustain any damages by reason of the collision; (56) and the jury found that the collision in question was not the result of an unavoidable accident.

After the verdict was returned appellant filed motion for judgment non obstante veredicto and in such motion asked the court to disregard certain findings of the jury and to render judgment in favor of plaintiff against defendants jointly and severally, and in the alternative he moved for judgment on the verdict. In this motion appellant asked the court to disregard the answer of the jury to Issue 36 to the effect that the failure of the appellant to yield the right of way to the police vehicle was a proximate cause of the collision. In the alternative, appellant's motion asserted that there was such conflict between said findings of the jury that judgment could not be entered on the verdict.

In this motion appellant asked the court to disregard the findings of the jury in response to Issue 46 to the effect that appellant, before changing the course of his vehicle on the occasion in question, failed to see first that there was sufficient space for such movement to be made in safety; to set aside the answer of the jury to Issue 47 to the effect that appellant's failure to see that there was sufficient space for such movement to be made in safety was a proximate cause of the collision in question; to disregard the answer of the jury to Issue 48 to the effect that appellant's failure to look in the direction from which the police car was approaching before driving into the east lane of Woodworth Boulevard was a proximate cause of the collision. In the alternative, appellant asked the court to grant him judgment on the verdict for the total sum of $14,950, and as reason therefor he contends: There is no finding that he failed to yield the right of way, which was assumed in Special Issue 36; nor is there a finding that such failure was negligence; that the jury found in respect to Issue 44 that plaintiff did not make a left turn at the intersection in question when the police vehicle was so close as to constitute an immediate hazard and that because of this finding the jury did not answer the issue as to whether his failure to yield the right of way was a proximate cause of the collision; that the jury's answer to Issue 48 cannot form the basis for a finding of contributory negligence because the issue of proper lookout was not submitted and a mere failure to look under the circumstances in and was not negligence as a matter of law; that said Issue 48 as submitted assumes that failure to look is a violation of the statute and negligence, whereas under the facts and circumstances it was an issue for the jury as to whether he failed to keep a proper lookout, and further that it was a question for the jury as to whether his failure to look was negligence. Appellant further contends that since the jury found in answer to Issue 49 that his failure to look in the direction from which the police car was approaching, before driving into the east lane of Woodworth Boulevard, was not negligence, and this finding is sufficient to disregard the answers of the jury to Issues 36, 46, 47 and 48. Appellant further contends that the court should disregard the jury's finding to...