Booker v. Baker

• Decision Date: 18 October 1957
• Docket Number: No. 15310,15310
• Citation: 306 S.W.2d 767
• Parties: Grady C. BOOKER et al., Appellants, v. W. G. BANKER, Appellee.
• Court: Texas Court of Appeals

Page 767

306 S.W.2d 767

Grady C. BOOKER et al., Appellants, v. W. G. BANKER, Appellee.

No. 15310.

Court of Civil Appeals of Texas, Dallas.

Oct. 18, 1957.

Rehearing Denied Nov. 15, 1957.

Wilbur T. Knape, Dallas, for appellants.

Gallagher, Francis, Bean, Wilson & Berry, J. O. Bean and Pete White, Dallas, for appellee.

DIXON, Chief Justice.

This is an appeal from a judgment non obstante veredicto in favor of appellee-plaintiff W. G. Baker against appellant-defendants Grady C. Booker and Felton Hunt for damages resulting from the death of appellee's infant son, Michael, and personal injuries to his wife, Mrs. Doris Baker, caused by an intersectional collision of automobiles.

On July 16, 1955 at about 1:45 p. m., Mrs. Doris Baker was driving the family automobile in an easterly directon on Highway 80; her infant son, Michael, was a passenger; also a passenger was her mother, a teacher at Old Tripp School. As Mrs. Baker approached an intersecting gravel road a short distance west of the intersection of Belt Line Road and Highway 80, she signaled a left turn, then turned north off Highway 80 to enter the gravel road which she believed would take her to Old Tripp School. After Mrs. Baker had cleared the paved portion of Highway 80 an automobile driven by appellant Grady C. Booker (Felton Hunt, owner of the automobile, was riding with Booker) and proceeding west on Highway 80 swerved off the paved portion of the highway onto the north shoulder of the road. Thereafter the two cars collided at a point near the northwest corner of the intersection.

At a trial before a jury each party alleged acts of negligence on the part of the other to be proximate causes of the collision, and each sought damages from the other.

The jury did not answer special issues Nos. 1 to 6 inclusive. These issues inquired whether Booker was under the influence of intoxicating liquor, and, if so, whether Hunt knew it and was negligent in entrusting the automobiles to Booker, and whether such negligence, if any, was a proximate cause of the collision.

The jury answered the remaining issues except where instructed not to do so, based on previous answers. The verdict may be summarized as follows: (7) Booker was driving the automobile in excess of 40 miles per hour, which (8) was a proximate cause of the collision; (9) he operated said automobile at a high and dangerous rate of speed, in excess of that at which a person of ordinary prudence would have driven it under the same or similar circumstances, which (10) was a proximate cause; (11) Booker failed to keep a proper lookout, which (12) was a proximate cause; (13) Booker turned the car off the highway, but (14) such act was not negligence; (16) he did not fail to reduce his speed immediately before the collision; (19) his failure to pass on the south side of Mrs. Baker's automobile was not negligence; (21) Mrs. Baker did not fail to keep a proper lookout; (23) she did not fail to give a warning of her intention to turn left; (25) Mrs Baker did turn to the left at a time when such movement could not be made with safety but (26) such manner of driving was not negligence; (A) at the time Mrs. Baker intended to turn left, the car driven by Booker was so close to the intersection as to constitute an immediate hazard; (B) Mrs. Baker's continuing her turn to the left was a proximate cause of the collision; (27) Mrs. Baker did not fail to drive to the right of the center of the roadway; and (29) her failure to turn to the right was not negligence.

The jury answered issues as to discovered peril as follows: (31) Mrs. Baker and her son just before the collision occupied a position of peril; which (32) Booker discovered and realized, and (33) he realized they would not extricate themselves from such position, but (34) not in time so that in the exercise of ordinary care he could have avoided the collision without injury to himself or the occupants of the car which he was driving; (37) just before the collision Booker and Hunt occupied a position of peril, which Mrs. Baker saw and realized, but (39) she did not realize they would not extricate themselves from their position of peril.

The jury answered issues pertaining to emergency as follows: (43) just before the collision Booker was acting under an emergency; (44) and after the emergency arose Booker did what an ordinarily prudent person would have done under the circumstances.

The jury then answered that (45) the occurrence was not an unavoidable accident; and (46) found damages in the amount of $25,625.

Appellant filed a motion for judgment based on the verdict, which motion was overruled.

Appellee filed a motion for judgment non obstante veredicto. The motion asserted that the court should disregard the answers to issues Nos. A and B, and 43 and 44, for the following reasons:

'(1) No finding of negligence against plaintiff's wife. (2) Finding of primary negligence in many respects against defendants. (3) No request nor issue submitted inquiring as to negligence, if any, regarding the matter inquired about in special issues Nos. A and B; therefore, no finding of negligence against plaintiff's wife. (4) Special issues Nos. A and B, being right of way issues, do not include all of the elements of the statute. Special issues Nos. A and B are not supported in law or by the evidence. (5) Issues of primary negligence found against the defendants that the hazard, if any, was produced by the excessive speed and failure to keep a proper lookout by the defendants, and such general finding of special issues Nos. A and B is overridden by the specific finding of primary negligence against the defendants. (6) The overwhelming weight and preponderance of the testimony showed conclusively that the hazard, if any, was produced by the negligent acts of the defendants. (7) Special issues Nos. 43 and 44 are immaterial and surplus issues which the court submitted to the jury at the request of the defendants, the court also having submitted discovered peril issues at the request of the defendants. (8) The general finding of sudden emergency as found by the jury in special issues Nos. 43 and 44 amounts to no finding at all since such general finding is overridden by the specific finding of primary negligence found against defendants regarding excessive speed and failure to keep a proper lookout, such finding having no application where the defendants' conduct before the collision produced and brought about their own peril. (9) The jury found defendants guilty of negligence which proximately caused the collision, therefore, the emergency issue is not in conflict with such finding and, absent any findings that emergency constituted sole proximate cause of collision, the specific finding of primary negligence against defendants overrides the general emergency finding in special issues Nos. 43 and 44.'

The court sustained appellee's motion for judgment non obstante veredicto and rendered judgment for $27,095.84.

Opinion.

In their first point on appeal appellants say that there were no material issues of fact raised by the evidence, therefore the court erred in overruling their motion for instructed verdict. In their fifth point they say there is no evidence to support the submission of issues Nos. 11 and 12. In their tenth point they say that the evidence conclusively shows that the facts found by the jury could not have been the cause of the collision.

We are unable to agree with appellants. There is evidence in the record that at the time Mrs. Baker gave the signal and began her left turn there was no traffic meeting her on Highway 80, there were no cars anywhere close to her, no cars within her view; the collision took place on the north shoulder of the highway after Mrs. Baker had cleared the paved portion; the rear part of her car was hit; Booker's car was being operated at a speed above eighty miles per hour--near to ninety or a hundred miles per hour; Booker had attempted to pass another car on the wrong side about a half mile or three-fourths of a mile east of the point of collision, and never did get back in his proper lane; when he reached the intersection he was off the pavement and missed by only two or three feet a car which had stopped on Belt Line Road waiting to cross Highway 80. There was other evidence in support of the jury's findings, but we shall not lengthen this opinion by further details. Appellants' first, fifth tenth points are overruled.

In their second point appellants contend that the court erred in refusing to submit their requested issues Nos. 3, 4, 5, 20, 21, and 22. These requested issues inquired whether appellants had the right of way, whether Mrs. Baker failed to yield the right of way, and whether such failure was a proximate cause; and whether Mrs. Baker made an illegal left turn, whether said illegal left turn was negligence and whether it was a proximate cause of the collision.

In our opinion it was not error for the court to refuse to submit said issues. Issue No. 20 sought to obtain a legal conclusion from the jury; issues Nos. 21 and 22 were conditioned on the answer to No. 20. Moreover the subject matter of the requested issues was covered substantially by issues Nos. 25, 26, A, B, and 27 as submitted by the court. The requested issues would have propounded only mixed questions of law and fact involving various phases and shades of issues which the court had already submitted. There was no error in refusing the requested issues. Rule 279, Texas Rules of Civil Procedure; Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124. Appellants' second point is overruled.

In their third point appellants say that the court erred in overruling their objections to special issues Nos. 7 and 8, which inquired whether Booker was driving his car in excess of 40 miles per hour, and, if so, whether such speed...