Brister v. Lasiter
Decision Date | 30 July 1969 |
Docket Number | No. 6025,6025 |
Citation | 444 S.W.2d 331 |
Parties | Roger Dale BRISTER et al., Appellants, v. Earl Henry LASITER, d/b/a Grandfalls Butane Company, Appellee. . El Paso |
Court | Texas Court of Appeals |
A. R. Archer, Jr., Monahans, for appellants.
Paul New, Denver City, for appellee.
This was a suit filed by appellants Roger Dale Brister, W. R. Jenkins, Jr., Mabel Mosley, individually and as statutory beneficiary and common-law survivor of Garvin Ray Mosley, and Ruthie Mosley, also as statutory beneficiary of Garvin Ray Mosley, against Earl Henry Lasiter, doing business as Grandfalls Butane Company, growing out of an automobile-truck accident at an intersection on U.S. Highway 80 and the Monahans Loop Road on the 21st day of November, 1967. In the accident the driver of the automobile, a Chevy II, Garvin Ray Mosley, was killed and the plaintiffs, Roger Dale Brister and W. R. Jenkins, were seriously injured. Trial was to a jury. All acts of primary negligence were found in favor of the defendant truck driver. Concerning the defendant, the jury found that he did not fail to keep a proper lookout; that he did not fail to timely apply his brakes; that he did not fail to yield the right-of-way; that he did not fail to observe the stop sign at the intersection. All issues submitted to the jury on contributory negligence and the related proximate cause were found against the respective plaintiffs below, who are the appellants herein. The deceased driver of the automobile, Garvin Ray Mosley, was found guilty of negligence in that he failed to keep a proper lookout for the truck; that he failed to timely apply his brakes; that he failed to observe the flashing light and reduce his speed on approaching the intersection; that he drove his vehicle at an excessive rate of speed under the circumstances; and that he failed to turn his vehicle to the left in time to avoid a collision. As to the two passengers in the automobile, Roger Dale Brister and W. R. Jenkins, the jury found that they each failed to keep a proper lookout for the truck of the defendant. The jury further found that the collision was not an unavoidable accident. In view of the above stated findings by the jury, judgment was entered by the trial court for the defendant truck driver.
Appellants' first point asserts the absence of evidence to support the jury's finding that the appellee truck driver did not fail to keep a proper lookout, and by appropriate assignments as to the same issue, that the evidence is insufficient to support the finding, and again, against the great weight and preponderance of the evidence. Of course we have to consider and dispose of the 'no evidence' point before passing upon the 'insufficiency of evidence', and in considering the former, first it will be our consideration to examine only the evidence and the inferences favorable to the finding and disregard all evidence and inferences to the contrary. Calvert, "No Evidence' and 'Insufficient Evidence' Points of Error', 38 Texas Law Review, 361.
The undisputed facts are that the collision occurred at about 7:00 o'clock p.m., after dark, at the intersection of U.S. Highway 80 and Monahans Loop Road. U.S. 80 runs east and west, and the Loop Road north and south. Parallel to U.S. 80 are the main T. & P. railroad tracks. The Loop Road is two lanes and U.S. 80 contains four traveling lanes, each 12 feet wide with two on the north for west-bound traffic, and two on the south for east-bound traffic. There is a three-foot wide yellow center stripe dividing east and west-bound traffic. Along the north side of U.S. 80 there is an 18-foot paved shoulder, and along the south side a 32-foot paved shoulder. The appellee truck driver approached the intersection driving south. As he approached, there were two stop signs, one on the north side of the railroad tracks for the trains, and one at the intersection of the two roads for the control of highway traffic. Also, above the intersection was in operation a system of flashing lights, red facing the traffic from the north, and yellow facing the traffic in each direction on U.S. 80. While the intersection is in the city limits of Monahans, there is a speed limit sign facing west of 60 miles per hour, some 200 feet to the west of the intersection. The intersection was well lighted and the night was clear and dry.
The appellee, being in the butane business, testified that he had a load of butane on his truck; his clearance lights, cab lights, and headlights were on; that as he was going south on the Monahans Loop Road that he first stopped on the north side of the railroad tracks, from which point he moved forward and again stopped his truck in observance to the stop sign and the two blinking red lights that were facing him; that he had passed the intersection hundreds of times. That he then looked to his left and right. His vision was not impaired, and as he looked in both directions he saw car lights in the distance, and he started across the intersection. When he was about middle of the four-lane road, he looked to his left and right again, and when he looked to his right he saw some lights that appeared to be about 400 to 600 feet away. He continued on across the intersection and the approaching lights belonging to the appellants' car struck the right rear of his truck when about four feet of the rear of the truck was left in the south lane of traffic. That it was not the distance he had to travel, but the speed of the approaching vehicle that caused the collision. That at the time of the impact the truck was traveling at ten to twelve miles per hour. The total load of the butane tanks that he was carrying was around some 16,000 pounds, and the tanks were knocked off the truck and came to rest 20 to 40 feet on east of the impact area. The tanks were fastened to the truck with eight steel bolts and a bracket welded to the tanks. All the investigating officers were called on behalf of the appellee and testified that the Chevy II laid down 154 feet of skid marks, all in the south lane of Highway 80 and all going in a straight line to the point of impact, which was located two feet east into the intersection and three feet seven inches south of the center of the east-bound traffic. The Chevy II came to rest nine feet east after impact, and the tanks were knocked some twenty feet southeast from that point. Officer Jodie Fore, Texas Highway Patrolman, testified that in his opinion the Chevy II, at the time it struck the truck, was traveling between 40 to 45 miles per hour, and estimated the speed of the Chevy II before it started applying its brakes to be between 90 and 95 miles per hour. Dr. William H. Tonn, Jr., a consulting engineer engaged in accident-analysis work, saw and examined the Chevy II and the truck, the photographs and the scene, and stated that in his opinion before the brakes on the Chevy II were applied, it would have been going in excess of 73 miles an hour, and in his opinion at the time of the impact the Chevy II was going in excess of 50 miles an hour. The front of the Chevy II was completely demolished, and he demonstrated that damage came from the energy of the car running straight into the rear side of the heavy truck; that the forward motion of the Chevy II for some nine feet after the impact, the throwing off of the heavy tanks, all indicated even more speed.
Other than the appellee, there was no eye-witness to the accident, the driver of the Chevy II having been killed, and the passenger in the front seat, Roger Dale Brister, facing to the rear talking to the rear seat passenger, W. R. Jenkins who, in turn, had no recollection of the events immediately preceding the accident.
As we view the matter, there is no difficulty in concluding that there was considerable evidence of probative force to support the jury's finding that the truck driver did not fail to keep a proper lookout. Primarily, it is not a question of lookout; it was a matter of misjudging the speed of the Chevy II as it came into the intersection controlled as to it by flashing yellow lights.
Every person proceeding along or across a public street is under the duty at all times to maintain a proper lookout for his own safety, and may not proceed blindly and in disregard of danger that might reasonably be anticipated to exist. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95. Admittedly, it is the duty of a driver about to enter a favored street not only to look, but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including the speed and proximity of vehicles approaching from either direction. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. But the mere fact that an accident happened is not evidence of failure to keep a proper lookout. We think it is established under the law of this state that when the appellee looked in both directions before entering the intersection and looked again in both directions when he approached the middle stripe and saw the lights, he certainly exercised some care for his own safety and that of others. He was driving slowly at the time and had only to clear 24 feet of east-bound lanes of traffic when he started into the east-bound lane. At that time the lights of the Chevy II appeared to be 400 to 600 feet away. Facing the Chevy II were the yellow caution lights. From his viewpoint when he drove on, it did not appear that the Chevy II was approaching so closely as to constitute an immediate hazard. Considering only the evidence favorable to the finding, we conclude that the appellants' contention that there was no evidence to support the jury's...
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