Blasberg v. Cockerell

• Decision Date: 09 June 1952
• Docket Number: No. 6220,6220
• Citation: Blasberg v. Cockerell, 254 S.W.2d 1012 (Tex. Ct. App. 1952)
• Parties: BLASBERG v. COCKERELL et al.
• Court: Texas Civil Court of Appeals

Page 1012

254 S.W.2d 1012

BLASBERG v.COCKERELL et al.

No. 6220.

Court of Civil Appeals of Texas, Amarillo.

June 9, 1952.

Rehearing Denied Sept. 2, 1952.

Sanders, Scott, Saunders & Smith, Amarillo, Gordon & Gordon, Pampa, for appellant.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Smith, Teed, Wade & Waters, Pampa, Childers & Childers, Abilene, for appellees.

LUMPKIN, Justice.

This is an automobile collision case.On October 30, 1949, while the appellant, Lawrence Blasberg, was driving an automobile on U. S. Highway 66 about one and one-half miles east of McLean, Texas, his car was involved in a wreck with an automobile driven by the appellee, Edward E. Cockerell, Jr.As a result of the collision Don Rives, who was in the appellee's car, was killed, and L. E.See, the other passenger, was badly hurt.Both of the parties, Blasberg and Cockerell, suffered serious injuries.It appears that the appellant was trailing a large truck going east; the appellee was traveling west.Both parties were on a level, straight stretch of road.When the appellant pulled out to go around the truck, he saw the appellee's car coming toward him.He thought he would have sufficient time to pass the truck until he realized that the appellee's car was 'closing in fast.'He then accelerated his car, and as he completed the pass and attempted to turn back to his right side of the highway, the car skidded to the left and into the left front of the appellee's car.Although it was drizzling rain and the pavement was wet, visibility was good for at least a mile.As the two cars collided, the appellee's automobile bounced to the north and came to rest on the north side of the pavement facing west with its left front and left rear wheels two or three feet inside the strip of pavement.The appellant's Ford stopped in the center of the highway, east of the appellee's Pontiac.

The appellee alleged various acts of negligence on the part of the appellant.The appellant's answer consisted of a denial and pleas of contributory negligence.He alleged certain alternative pleas and also filed a cross-action against the appellee alleging that the appellee was negligent in several particulars.In addition he filed a cross-action against L. E.See and a third party action against the Plains Machinery Company, the appellee's employer.See settled with the appellant prior to the trial, and he therefore is not a party to this appeal.

Trial was to a jury.In answer to numerous special issues the jury determined the following facts: that the appellant was not driving in excess of 60 miles per hour; that the appellant was not operating his automobile at an excessive rate of speed; that the appellant's driving on the left hand side of the highway at the time of the collision was not negligence; and that the appellant did not drive his vehicle to the left of the truck when that side of the highway was not clear and unobstructed.

But the jury did find that the appellant, at the time and place of the collision, did fail to yield to the vehicle driven by the appellee one-half of the highway and that such failure was the proximate cause of the collision.The jury fund that the appellant failed to keep his automobile under control but that this was not negligence.The jury, however, found that the appellant failed to keep a proper lookout for vehicles approaching from the east; that this was negligence and the proximate cause of the collision.

In accordance with these and other findings of the jury, the court rendered judgment in favor of the appellee and against the appellant, both as to his cross-action against the appellee and as to his third party cross-action against the Plains Machinery Company.The appellee was awarded the sum of $30,500; from this judgment the appellant has duly perfected this appeal.

As a defense the appellant had alleged that the appellee was guilty of contributory negligence in failing to apply his brakes in order to avoid the collision; in failing to reduce the speed of his automobile; and in failing to yield the pavement when there was plenty of room on the north side to drive in safety.In the alternative the appellant pleaded that the collision was an unavoidable accident; he likewise alleged sudden emergency, new and independent cause, sole proximate cause and discovered peril.The trial court submitted none of the appellant's defensive issues to the jury.

Our courts have held that a defendant is entitled to an affirmative submission of his defensive issues, and that a finding on issues submitted is not a finding on issues not submitted.Schumacher Co. v. Holocomb, 142 Tex. 332, 177 S.W.2d 951.In the case of Humble Pipe Line Co. v. Kincaid, Tex.Civ.App., 19 S.W.2d 144, 148, writ refused, the court stated the rule:

'It is the settled law of this state that a defendant is entitled to an affirmative submission to the jury of any fact or group of facts pleaded by him and supported by material evidence, which, if found true, would exculpate him from liability, and he may not be deprived of this right through an adverse finding upon some other issue the answer to which would render him liable.'

Although requested to do so by the appellant, the court did not submit the issue of unavoidable accident.In order to determine whether such an issue is involved, the facts of each particular case must be examined to determine whether there is a theory under which the accident could have happened even if all the parties to the collision exercised the degree of care required by law.Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777.In Winn v. Taylor, Tex.Civ.App., 111 S.W.2d 1149, 1150, the court said:

'A jury issue as to unavoidable accident is raised in automobile collision cases if the evidence shows wet pavement, skidding, existence of an obstacle that might obstruct the view, or some cause other than the negligence of one of the parties.Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513;Mays v. Smith, Tex.Civ.App., 95 S.W.2d 1342;Swift & Co. v. Eanes, Tex.Civ.App., 92 S.W.2d 522.'

As we have seen, the appellant pleaded that the collision was an unavoidable accident.Disregarding all evidence to the contrary and indulging every legitimate inference, we shall review the testimony briefly and determine if there is any evidence-when viewed in its most favorable light-which will support his allegations.41 Tex.Jur. 1041.

The appellant testified that when he started to pass the truck he saw the appellee's car about 6/10 of a mile in front of him:

'Q.And then what happened after you started around?A.I naturally accelerated; I thought there would be plenty of room; I went up to, say, 45 or 50, then when I was about at the point of the cab of the truck, this other car coming from the, let's see, that would be East, was closing in fast, so I accelerated even more at the point of the collision; just a few seconds or so, my foot was on the floor board, I was going about 55.That was all the speed I could get up.

'Q.Now, where did this impact occur, Lawrence, with reference to the truck?A.Well, I started to pull in front of the truck about 40 or 60 feet, and then on making my turn to pull in front of the truck, I started to skid; that was about 60 feet from the truck.

'Q.Are these estimates, Lawrence?A.Yes, wholly estimates, but I do know I was in front of the truck, and a lenght of time that I would have time to turn in front of the truck, and actually, well, if I didn't make such a sharp turn, or wasn't forced to make such a sharp turn in front of the truck, I wouldn't have skidded.What happened was, I skidded, I made a sharp, sharper than I expected to turn to get in front of the truck; my car, it seemed...