Blaugrund v. Gish

• Citation: 179 S.W.2d 257
• Decision Date: 02 April 1943
• Docket Number: No. 4313.,4313.
• Parties: BLAUGRUND v. GISH.
• Court: Court of Appeals of Texas

179 S.W.2d 257

BLAUGRUND v. GISH.

No. 4313.

Court of Civil Appeals of Texas. El Paso.

April 2, 1943.

Rehearing Denied June 10, 1943.

Appeal from District Court, El Paso County; David E. Mulcahy, Judge.

Action by Elton R. Gish against A. J. Blaugrund, doing business as the Columbia Furniture Company, for injuries and damage sustained in a collision between an automobile and a truck. From a judgment for plaintiff, defendant appeals.

Affirmed.

Judgment affirmed by Supreme Court, 179 S.W.2d 266.

Kemp, Smith, Goggin & White, of El Paso, for appellant.

Cunningham, Ward & Cunningham, of El Paso, for appellee.

PRICE, Chief Justice.

This is an appeal from the judgment of the 41st District Court, El Paso County, Texas, wherein Elton R. Gish was plaintiff and A. J. Blaugrund, defendant. Plaintiff sought to recover damages alleged to have been caused in a collision between an automobile driven by plaintiff and a truck driven by defendant's employee. The basis of the cause of action alleged was negligence on the part of the driver of defendant's truck. The trial was before the court with a jury, the submission on special issues. On the verdict judgment was rendered in favor of plaintiff in the sum of $3082.88. From this judgment defendant Blaugrund has perfected this appeal.

The parties will be hereinafter referred to in accordance with the designation they bore in the trial court.

Defendant here asserts eight points of error. In these points complaint is made of the court's refusal of certain issues requested by the defendant, alleged error in the court's charge, as to misconduct of the jury, improper argument of counsel, and the overruling of his motion for a new trial on the ground of newly discovered evidence.

There is no question raised as to the sufficiency of the pleading, and hence a statement of same is deemed unnecessary.

The collision in question occurred in the intersection of Pierce Avenue with Highway No. 54. Pierce Avenue runs generally east and west, Highway 54 north and south. The eastern terminus of Pierce Avenue is Highway No. 54. Highway 54 is a four-lane road, there being two lines of traffic on each side of the center of such highway. The collision in question occurred on the afternoon of April 30, 1941, at about 1 P.M. Plaintiff was driving north on Highway 54, defendant's truck was proceeding in the same direction in front of plaintiff's car toward Pierce Avenue. The collision occurred at the intersection at or about the time defendant's truck was turned to the left, the driver intending to proceed westerly on that street. The plaintiff was attempting to pursue his northerly course across the intersection.

Plaintiff's version as to how the collision occurred is about as follows: That he was traveling north in the second traffic lane from the east of the road, defendant's truck was some distance in front of him. At a distance of about fifty or seventy-five to one hundred feet he sounded his horn to signal to the truck that he intended to pass to the truck's left in the course he was then pursuing; that defendant's truck was then in traffic lane No. 1 to the east and continued therein without giving any signal that it intended to turn to the left into Pierce Street; that at the time defendant's truck reached Pierce Street it suddenly turned to the left into the pathway of plaintiff's car and the collision occurred, plaintiff suffering damage to his person and to his car.

The version of defendant's driver is about as follows: He was driving the truck north on Highway 54 along traffic lane No. 1; that is, the east traffic lane, when he perceived in his rear-view mirror plaintiff's car about three-fourths of a block to his rear, traveling in traffic lane No. 2; that some distance from the intersection he held out his hand to indicate that he intended to turn to the left there and moved into the second lane of traffic; that on reaching the intersection he attempted to turn to the left; that at or about this time the car driven by plaintiff struck him, the point of impact being somewhat west of the center of the intersection.

The testimony of the driver of defendant's truck is to an extent corroborated by the testimony of a traffic officer who came upon the scene of the collision after same had occurred. He based his testimony partly on the position of skid marks which he took to be those of plaintiff's car.

The case was submitted to the jury on some eighteen special issues. The jury found that defendant's driver, before changing the course of his truck, was negligent in failing to give a plainly visible signal of his intention to turn; such negligence was the proximate cause of the collision; that defendant's driver failed to keep a proper lookout, and that same was the proximate cause of the collision; that the driver of the truck changed the course of same when there was insufficient space for such movement to be made in safety; that in so doing he was guilty of negligence, and that same was the proximate cause of the collision; found that plaintiff did not fail to sound audible and suitable signal before he attempted to pass the truck; found plaintiff did not fail to keep a proper lookout; found that plaintiff did not operate his automobile at a high and excessive rate of speed; found damages to plaintiff's person in the sum of $2,625, and as to damage to his automobile, the sum of $457.88.

Defendant requested in writing three issues submitting to the jury whether plaintiff had his automobile under control at the time or just prior to the collision, and as to whether such failure was negligence, and as to whether same was a proximate cause. In connection with the first issue this explanation was given:

"By the term `under proper control' is meant that the operator of the motor vehicle, by the means at his command, by the use of ordinary care, could so change the speed or course, or stop if necessary, to avoid the danger of a collision with, or injury to, any person or thing he should, in the exercise of ordinary care, have reasonably anticipated or foreseen might probably come into the pathway of his car."

In his statement a portion of the testimony of the driver of the truck is set forth. We have heretofore, we think, sufficiently summarized this testimony.

We might further add, in the judgment of the traffic officer the point of the impact of the two vehicles was about the center line of the intersection; that the skid marks leading up to the point of impact were on the left-hand side of the center line the width of a car.

Now, assuming, as we must in the consideration of this question, that all of the testimony of the driver of the truck is the truth, so assuming, there seems no good reason why plaintiff should not have swerved his car to the eastern traffic lane and passed to the right of the truck in safety. If he could have so avoided the accident, he failed to do so. This, we do not think warrants an inference the car was not under proper control; nor do we think the fact that he did not do so is any warrant for the inference that he could not have done so. From the fact that he collided with defendant's truck, it cannot be inferred that he did not have his car under proper control; from the fact that he sought to pass to the left rather than to the right of defendant's truck, we do not think sufficient to raise the issue of proper control. It will be observed that the court did submit to the jury the fact whether plaintiff operated his car at a high and excessive rate of speed. Now, a finding of a high and dangerous rate of speed is not necessarily conclusive of the question as to whether the driver had his car under proper control. Manlove v. Lavelle, Tex. Civ.App., 235 S.W. 324; Austin v. De George, Tex.Civ.App., 55 S.W.2d 585.

However, in our opinion, the rate of speed at which a car is operated may be a constituent element as to whether same was under proper control. For instance, one approaching an intersection at such a rate of speed that it was impossible for him to yield the right of way to one approaching from his right would, we think, be guilty of negligence in two aspects; one, the failure to yield the right of way; another, in failing to maintain proper control over his car. In this latter case, speed would perhaps be the sole constituting element. The car was simply driven so fast that it could not, by slackening its pace or stopping, yield the right of way.

Here, we believe that if the issue of proper control was in the case, the constituent element was speed. This issue was submitted on behalf of the defendant and found against him. Under T.R.C.P. 279, it is our opinion the court was not in error in refusing the requested issues.

The defendant requested and the court refused Special Issues 4 and 5, which are as follows:

4. "Do you find, from a preponderance of the evidence, that plaintiff, Elton R. Gish, in endeavoring to pass defendant's truck, operated his automobile at such a rate of speed as to endanger the life or limb of any person, or the safety of any property?"

5. "Do you find, from a preponderance of the evidence, that such rate of speed at which plaintiff was operating his automobile, was a proximate cause of the collision?"

These issues were based on the provisions of Art. 790 of the Penal Code of Texas. In the case of West Texas Coaches v. Madi, Tex.Com.App., 26 S.W.2d 199, it is held that the provisions of the article in question are sufficiently specific and definite to establish a rule of civil conduct. But here, again, in our opinion, the issue of high and excessive rate of speed covers substantially the issues defendant sought to have submitted. Now a rate of speed such as to endanger the life or limb of any person or the safety of any property is certainly a high and excessive rate of speed. In our opinion, for all substantial purposes, the statute simply provides that one shall not operate his automobile at a negligent rate...