Boaz v. White's Auto Stores

• Decision Date: 09 June 1943
• Docket Number: No. 8081.,8081.
• Citation: 172 S.W.2d 481
• Parties: BOAZ v. WHITE'S AUTO STORES et al.
• Court: Texas Supreme Court

172 S.W.2d 481

BOAZ v. WHITE'S AUTO STORES et al.

No. 8081.

Supreme Court of Texas.

June 9, 1943.

Rehearing Denied July 14, 1943.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mary A. Boaz, and others, against White's Auto Stores, a partnership, and others, to recover for death of husband of named plaintiff resulting from injuries sustained when struck by an automobile. Judgment for plaintiff was reversed by the Court of Civil Appeals, 166 S.W.2d 942, and named plaintiff brings error.

Judgments of the trial court and of Court of Civil Appeals both reversed, and case remanded to trial court.

Sidney L. Samuels, of Ft. Worth, Storey, Storey & Donaghey, of Vernon, and Bouldin & Bouldin, of Mineral Wells, for appellant.

T. R. Boone and Kearby Peery, both of Wichita Falls, for appellees.

HICKMAN, Commissioner.

In the trial court petitioner, Mrs. Mary A. Boaz, was awarded judgment against respondents, White's Auto Stores, a partnership, and the individual members thereof, for damages on account of the death of her husband, Asa Boaz, who lost his life as a result of being struck by a truck belonging to respondents on a highway about four miles from the town of Oklaunion, Texas. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that petitioner take nothing, the ground of its decision being that, as a matter of law, the negligence of the deceased, Asa Boaz, contributed to the collision and resulting injuries. 166 S.W. 2d 942.

It is disclosed that Asa Boaz was struck by the truck at about eight o'clock P. M. at the intersection of Highway No. 183 running north and south and a graveled country road running east and west. He was walking west on the graveled road and the truck was being driven south on the highway. The paved portion of the highway was 18 feet wide. No one accompanied him and the evidence with respect to how the accident happened is fragmentary. There is evidence to the effect that at the time he started to cross the highway respondent's truck was from 600 to 800 feet north of the intersection. The only other motor vehicle which was approaching the intersection was an automobile some 500 to 800 feet south of the intersection and traveling north. That automobile was still 300 feet from the intersection at the time the truck struck the deceased. It was being operated at a speed of 35 miles per hour, which indicates that the truck was being operated at a very high rate of speed. There is also evidence that deceased was struck on the western edge of the pavement with the right front fender of the truck. The evidence is set out in more detail in the opinion of the Court of Civil Appeals. It reveals these controlling facts: The deceased started to walk across a highway with which he was familiar on a dark night when there was a truck approaching from one direction and a car from the other, each being some 200 yards or more distant from the point where he started to cross. Why he did not get across this 18-foot pavement before the truck struck him rests in pure conjecture. All that is known for certain is that he did not get across, but was struck by the right front fender of the truck on the edge of the pavement.

The above statement, to our minds, leads certainly to the conclusion that it cannot be held, as a matter of law, that the acts of the deceased constituted contributory negligence, for the fact that the cause of the collision rests in conjecture, within itself, precludes such a holding. The presumption is that the deceased exercised ordinary care for his own safety, and in order for respondents to be entitled to have it ruled that, as a matter of law he failed to do so, the burden rested upon them to overcome that presumption by competent evidence so conclusively that reasonable minds could not differ with respect thereto. The question must be approached from the viewpoint of the deceased. His lips are closed and we do not have the benefit of his version of the occurrence. There is not the slightest suggestion that he was bent on self-destruction, and the strongest of presumptions is that he was not. The most probable explanation of the matter is that he misjudged the distance or the speed of the truck, or both. Persons in ordinary travel are often called upon to estimate the speed of approaching vehicles. It is common knowledge that mistakes with reference thereto frequently occur, particularly at night. Such mistakes of judgment fall far short of establishing want of ordinary care. There are many well reasoned opinions by the courts of this State upon the question under discussion. No reason appears why we should undertake to rewrite what is so well written therein. It is thought that the following cases, among others, establish the law in this jurisdiction to be that under the facts of the instant case, it could not be held that, as a matter of law, the death of the deceased was contributed to by his own negligence. Gulf C. & S. F. R. Co. v. Gasscamp, 69 Tex. 545, 7 S.W. 227; Texas & N. O. R. Co. v. Harrington, Tex.Com.App., 235 S. W. 188; Pearson v. Texas & N. O. R. Co., Tex.Com.App., 238 S.W. 1108; Lancaster v. Browder, Tex.Com.App., 256 S. W. 905; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; Hines v. Arrant, Tex.Civ.App., 225 S.W. 767 (error refused); Fort Worth & R. G. Ry. Co. v. Sageser, Tex.Civ.App., 18 S. W.2d 246 (error dismissed).

Having determined that, in our opinion, the Court of Civil Appeals erred in its holding that relator was precluded from recovering by the contributory negligence of the deceased, we look to the briefs filed in the Court of Civil Appeals to determine what disposition to make of the case...