Bledsoe v. Yarborough
| Decision Date | 07 December 1967 |
| Docket Number | No. 317,317 |
| Citation | 422 S.W.2d 222 |
| Parties | Carl BLEDSOE, Jr., Appellant, v. Creva Mae YARBOROUGH, Appellee. . Tyler |
| Court | Texas Court of Appeals |
Barnes & Barnes, Robert E. Barnes, Beaumont, for appellant.
Jack Dies, Lufkin, for appellee.
Appellant, Carl Bledsoe, Jr., perfected this appeal from an order overruling his plea of privilege to be sued in Jasper County, the county of his residence. The appellee, Creva Mae Yarborough, filed suit against appellant Bledsoe in the District Court of Shelby County, Texas, under the provisions of the Death Statute, Vernon's Ann.Civ.Stat., Art. 4671, for damages sustained by her as a result of the death of her daughter, Linda Chastine Yarborough, who was killed when the automobile driven by her daughter collided with the automobile driven by the appellant.
In reply to appellee's suit, appellant filed a plea of privilege to be sued in the county of his residence. Appellee subsequently filed her controverting plea in which she sought to hold venue in Shelby County under Subd. 9a, Art. 1995, Vernon's Ann.Civ.Stat. In her controverting plea, appellee adopted the allegations of her second amended original petition alleging that the appellant was guilty of negligence proximately causing the collision and resulting death of her daughter, as follows: (a) in driving his automobile at an excessive rate of speed; (b) in failing to keep a proper lookout; (c) in failing to apply his brakes; and (d) in turning his automobile into the eastbound traffic lane occupied by plaintiff's daughter. After a hearing, the trial court overruled appellant's plea of privilege and he perfected this appeal.
The trial court filed findings of fact and conclusions of law, finding appellant guilty of 'negligence and carelessness' proximately causing the death of Linda Chastine Yarborough and based thereon concluded that venue was properly laid in Shelby County, Texas, under Sec. 9a, Art. 1995, supra. The finding of negligence was of a general nature and was not confined to any specific act of negligence.
The evidence offered by appellee to sustain venue in Shelby County consists of the deposition testimony of the appellant and the testimony of Chester Williford, an ambulance driver. According to appellant's deposition testimony, the accident occurred on January 9, 1965, on a public highway leading from the City of Nacogdoches to the City of Center, Texas. He testified that he and his wife, traveling in their Thunderbird automobile, had left Nacogdoches at approximately 11:00 A.M. and were going to Center in search of antiques; that shortly after they had passed the town of Martinsville, his wife noticed a well pulley at an abandoned farm home on the left-hand side of the highway. After discussing the matter, they decided that they might be interested in acquiring the well pulley as an antique. He testified that he made a U-turn upon the highway and then proceeded back past the abandoned house where he and his wife again looked in the direction of the well pulley. After observing it, they decided they were not interested in it and would not stop. He testified that it was a dark and rainy day. Immediately before the collision, he testified that he was traveling on his right-hand side of the highway at a speed of approximately ten miles per hour; that he had previously noticed the deceased's Falcon automobile approaching him at a distance of approximately 100 yards, but did not notice anything unusual about the movement of the automobile. He further testified that as he traveled along the highway, he was looking at the shoulder on the right-hand side of the road to see if it was safe, considering the dimness of the weather, to pull off on the right-hand side and make another U-turn so that they could continue on their way to Center; that while he was looking at the shoulder, he suddenly heard a noise and looked up and saw the deceased's automobile sliding toward him sideways in his lane of traffic; that he applied his brakes but did not know whether or not his automobile stopped before the impact. Immediately before the impact, according to his testimony, deceased's automobile was sliding sideways in his lane of travel and upon impact, the front end of his vehicle struck the right front door of deceased's automobile. He testified that after the impact, his automobile came to rest upon the shoulder on his right-hand side of the highway and that the deceased's automobile was in his lane of travel upon the paved portion of the roadway.
Chester Williford, the ambulance driver, in addition to testifying that the accident occurred in Shelby County, testified that on the way to the hospital, appellant made a statement to him with reference to the accident. His testimony in this connection was as follows:
'A Well, he told me that he was an antique collector and he had spotted this old pulley on a well and he went back to see about it and when he looked around or looked up, one or the other, that he discovered this car out of control coming towards him.
'Q Did he say he had been looking back at the well pulley?
'A He said he had been looking for the well pulley.
'A He said he had gone back to try to find this old well pulley and when he looked up, he saw the car coming towards him out of control.
'A Yes, sir.'
At the conclusion of appellee's evidence, appellant rested without offering any evidence. Because of the nature of the case, we have attempted hereinabove to set forth fully all the evidence offered by appellee to sustain her burden of proof.
Appellant contends that there is no evidence, or in the alternative the evidence is insufficient, to support the finding of the trial court that he was guilty of negligence or carelessness proximately causing the collision.
The provisions of Subd. 9a of the venue statute specifically provides that in order for a plaintiff to sustain venue in a county other than defendant's residence, the plaintiff must prove by a preponderance of the evidence (1) that an act or omission of negligence occurred in the county where the...
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