Buchanan v. Lang
| Decision Date | 06 March 1952 |
| Docket Number | No. 3004,3004 |
| Citation | 247 S.W.2d 445 |
| Parties | BUCHANAN et al. v. LANG. |
| Court | Texas Court of Appeals |
John M. Barron, Bryan, R. E. Keeton, Dallas, Baker, Botts, Andrews & Parish, Houston, for appellants.
John M. Lawrence, III, Bryan, Richard H. Cocke, Dallas, for appellee.
The parties to this appeal will be referred to as they were in the trial court. Plaintiff sued defendants for damages on account of injuries resulting from a collision between two automobiles. The collision occurred within the southwest quarter of a street intersection in the City of Bryan where there were no traffic control signals. Plaintiff was driving south and defendant Buchanan was driving east at and immediately prior to the time of the wreck. Plaintiff alleged that the collision was proximately caused by certain specific acts of negligence on the part of defendant Buchanan. Defendants answered with a general denial, a plea of unavoidable accident and a general allegation that plaintiff 'was guilty of negligence which proximately caused the accident.' The case was tried before a jury. Upon the answers of the jury to special issues, the court rendered judgment for plaintiff and defendants have appealed.
Defendants contend here, as they did in the trial court, that they were entitled to judgment in their favor because they say plaintiff was guilty of contributory negligence as shown by the verdict of the jury and the undisputed evidence in the case. If they are correct in this contention, the judgment appealed from should be reversed and judgment should be here rendered that plaintiff take nothing; otherwise, the judgment should be affirmed.
The jury found in substance that plaintiff entered the intersection before Buchanan did; that Buchanan was negligent in failing to yield the right of way to plaintiff, in failing to keep a proper lookout, and in driving at an excessive rate of speed, and that such negligence was in each particular a proximate cause of the collision; that the amount of plaintiff's compensatory damages was $4750; that plaintiff did not fail to keep a proper lookout, did not drive at an excessive rate of speed and his failure to yield the right of way to Buchanan was not a proximate cause of the collision; and that the collision was not the result of an unavoidable accident. No contention is here made that the evidence was insufficient to support the findings of the jury on the foregoing issues of primary negligence.
Although the jury did not expressly find any negligence on the part of plaintiff or any causal connection between his conduct and the injuries of which he complains, it did return an affirmative answer to Special Issue No. 19, which was as follows: 'Do you find from a preponderance of the evidence that the approach of defendant's vehicle on the occasion in question was open and obvious?' In connection with this issue the trial court instructed the jury: 'By 'open and obvious' is meant that the approach of defendant's vehicle would have been noticed by a person of ordinary prudence, in the exercise of ordinary care, under the same circumstances, or under circumstances similar to those the plaintiff was in, as he approached and entered the intersection.' Defendants say the answer of the jury to this issue and the undisputed evidence pertinent thereto conclusively precluded plaintiff from any right of recovery in the case.
Under the provisions of Rule 94, T.R.C.P., contributory negligence must be affirmatively pleaded in order to be available as a ground of defense to an action for damages on account of injuries proximately caused by the negligence of a defendant. Rule 279 T.R.C.P. provides that when the trial court submits a case to a jury on special issues, he shall submit the controlling issues made by the written pleadings and the evidence, and, except in certain instances therein set forth, a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. It is elemental that the trial judge should not submit any issue to a jury in language that renders the meaning thereof indefinite or uncertain and he should not submit any issue which is argumentative in nature and relates only to evidentiary matters.
It appears to us that Special Issue No. 19 as submitted and the court's instruction in connection with the same were each patently erroneous, both in substance and form, and that neither should have been given to the jury. Not only were they vague, indefinite and uncertain in meaning, but they did not submit to they jury any ultimate, controlling issue of fact raised by the pleadings or tendered by the evidence in that they did not require or permit the jury to find that the plaintiff did anything or that he failed to do anything on the occasion in question, or that any act of...
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