Blunt v. H. G. Berning, Inc.

• Decision Date: 16 April 1948
• Docket Number: No. 13860.,13860.
• Citation: 211 S.W.2d 773
• Parties: BLUNT et al. v. H. G. BERNING, Inc., et al.
• Court: Texas Court of Appeals

211 S.W.2d 773

BLUNT et al. v. H. G. BERNING, Inc., et al.

No. 13860.

Court of Civil Appeals of Texas. Dallas.

April 16, 1948.

Rehearing Denied May 14, 1948.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Action by Donnie Faye Blunt and others against H. G. Berning, Inc., and another for personal injuries sustained by plaintiff Donnie Blunt when struck by defendant's truck while crossing a street intersection. From the judgment, plaintiffs appeal.

Judgment affirmed.

Joe V. Moore and W. H. Hall, both of Dallas, for appellants.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellees.

YOUNG, Justice.

The suit was for damages resulting from personal injuries inflicted upon Donnie Faye Blunt, age seven, when hit by the truck of defendant while she was crossing a Dallas Street intersection. Damages assessed by the jury were in sum of $10,000, but upon certain findings of contributory negligence, judgment on the verdict as a whole was for defendant; plaintiff's motion for judgment non obstante being overruled with result of this appeal.

After convicting defendant's driver of specific acts of negligence proximately resulting in the injuries complained of, further answers of the jury to issues were in effect, (Issue 9) that Donnie Faye Blunt failed to stop before attempting to cross Oakland Avenue on the occasion in question; (Issue 10) failed to keep a lookout for defendant's truck; and (11) failed to look in both directions before attempting to cross Oakland, all of which omissions on part of plaintiff constituted negligence proximately causing the injuries in suit.

Appellants' several points of appeal assert error in the trial court's refusal to render a plaintiff's judgment notwithstanding the jury answers to issues just mentioned, because same were either (a) contrary to undisputed evidence and without any evidence in support, or (b) were each and all contrary to the greater weight of credible testimony.

The accident occurred on the early afternoon of August 6, 1945, at intersection of Oakland Avenue (a highway running north and south) and Pennsylvania Street (running east and west with stop sign at each entrance into Oakland). Donnie Faye, living several doors to the east, was making the trip to the intersection and across Oakland to procure some soft drinks, carrying an empty bottle. Wm. Rainey, driver of defendant's truck, going south on Oakland, testified to approaching the intersection, speed about 20 miles per hour, not seeing the little girl in line of travel until very close; that she was running fast, he attempting a left movement to avoid collision, but failing in this, she was struck by right fender of the truck. Two disinterested witnesses to the scene were Richard Burchette, driver, and Austin McKinney, occupant, of a truck traveling north on Oakland and nearing the intersection. According to Burchette, he first saw the child as she "was trotting" along north sidewalk on Pennsylvania approaching Oakland curb line; that he took his eye off her a moment, next seeing her about middle of Oakland Avenue where she commenced running fast and was hit by right front end of the truck and knocked a distance of six or eight feet. Austin McKinney had also observed Donnie Faye on Pennsylvania Street approaching Oakland, then losing sight of her until she was in Oakland Avenue, first walking across, then beginning to run until three or four feet from northwest corner of Oakland when hit by defendant's truck. By reason of injuries resulting from the casualty, plaintiff testified to an entire loss of memory as to the occurrence or any recollection of having been struck down. However, Mrs. Gladys Blunt (mother) on cross-examination by defendant was permitted to relate a conversation had with plaintiff concerning the accident in question, viz.:

"Q. Did you talk to Donnie Faye as to how when she left the house, where she crossed the street? * * * A. She said the kids were sitting on the porch and they all gave her their money and she went to get the drinks with the coca cola bottle and she went across Pennsylvania and over on that corner of Oakland and there is a stop sign on Pennsylvania but there is none on Oakland and she walked up to the crossing to the stop sign where I had gone every morning in taking her to and from school. She said she didn't see a car and she said when she started across and got nearly in to where they drive in at the curb, to get their drinks at the drug store, here come a truck right fast and she said she was fixing to step up and he knocked her around the corner and she told me it hit her head on the curb, the concrete at the drug store."

The law very clearly imposes upon each and every person proceeding along or across a public highway or street the duty of maintaining a "proper lookout" for his own safety, the term importing such lookout as a person of ordinary prudence would...