City of Houston v. Moore

• Citation: 389 S.W.2d 545
• Decision Date: 08 April 1965
• Docket Number: No. 14492,14492
• Parties: CITY OF HOUSTON, Appellant, v. John MOORE, Appellee.
• Court: Texas Court of Appeals

Page 545

389 S.W.2d 545

CITY OF HOUSTON, Appellant, v. John MOORE, Appellee.

No. 14492.

Court of Civil Appeals of Texas, Houston.

April 8, 1965.

Rehearing Denied April 29, 1965.

John Wildenthal, Jr., City Atty., Edgar Pfeil, Senior Asst. City Atty., Herbert M. Beazley, Asst. City Atty., Houston, for appellant.

Robert L. Steely, Houston, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.

WERLEIN, Justice.

This suit was brought by appellee, John Moore, against the City of Houston to recover damages for personal injuries sustained by him as a result of a collision between his automobile and appellant's road maintainer, when the maintainer undertook to make a right turn into Mangum Road from West 43rd Street in Houston, Texas, on June 13, 1961. Judgment was rendered on the jury verdict in favor of appellee for the total sum of $47,200.00.

The evidence shows that 43rd Street has two lanes for traffic moving in a westerly direction, and two lanes for traffic moving in an easterly direction, with an esplanade separating the east and west bound traffic. 43rd Street intersects Mangum Road at right angles. At the time in question appellee was driving his car in company with his wife in a westerly direction, in the right or curb lane of 43rd Street. Appellee testified that they were traveling about 15 to 20 miles per hour; that appellant's grader or maintainer, which was also traveling in a westerly direction but in the left-hand lane, passed them when they were 'between half and three-fourths of the way up the block toward Mangum'; that he intended to make a right-hand turn on Mangum Road; that when he was a short distance from the intersection of 43rd Street and Mangum, he saw appellant's maintainer move toward the left, at which time he applied his brakes to slow down; that instead of making a lfet-hand turn, however, the maintainer made a sudden turn to the right to enter Mangum Road and collided with appellee's automobile, wedging it between the maintainer and the utility pole which was to the right of the right lane of 43rd Street and at its intersection with Mangum Road; and that the front of the rear dual wheels of the maintainer struck his automobile on its left side, and pushed it into the utility pole. Appellee's wife substantiated his testimony. Both testified there were no parked cars in the right lane in which they were driving and that no signal of any kind was given by the maintainer to indicate a turn in any direction.

Mr. Herring, the driver of the maintainer, testified in substance that he passed a parked car about 150 feet from the intersection of Mangum Road; that when he pulled around the car he looked back to see if anything was there and then gave a signal; that he stuck his right hand out when he was approximately 100 feet from the intersection, but pulled it back in so that he could steer with his left hand and lean the wheels of the maintainer with his right hand; that the maintainer had no signal device of any kind, and no rear-view mirror; that he never saw appellee's automobile until it was wedged in between the maintainer and the utility pole; and never applied his brakes until then; that the maintainer had two wheels at the front end, and four wheels at the back, and that he could steer it and also lean the wheels so as to make a sharp turn; that its driver's seat was higher than the top of an automobile; and that the cab where he sat had windows all around it.

In answer to the special issues the jury found that the driver of the maintainer was guilty of five acts of negligence, each of which was a proximate cause of the collision, and that appellee was not guilty of contributory negligence. The jury found that the operator of the maintainer changed the course and direction of the movement of the maintainer without first ascertaining that such movement could be made in safety; that he failed to make his approach for a right turn in the right-hand lane of West 43rd Street; that he failed to give a proper signal of his intention to turn right continuously during not less than the last 100 feet traveled by the maintainer before turning; that the maintainer was not equipped with a lamp or lamps or mechanical signal devices capable of clearly indicating an intention to turn either to the right or to the left; and that the operator of the maintainer failed to make such reduction in its speed before attempting a right turn as a reasonably prudent person in the exercise of ordinary care would have made. The jury also found in effect that appellee did not fail to keep a proper lookout, and that he did not fail to have his car under proper control.

We have carefully read the entire statement of facts and are of the opinion that the jury's findings are supported by evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. The driver of the maintainer testified that he was some six feet from the right-hand curb of 43rd Street as he approached the intersection; that he had not looked back subsequent to the time he put his right hand out momentarily and then pulled it back, which was 100 feet from the intersection, and that he was not giving any continuous signal as he approached the intersection. He also testified that he inclined his front wheels so he could make a sharp turn and that he did not slow down, and did not apply his brakes until the impact. It is our view that none of the special issues are objectionable as being on the weight of the evidence. No exceptions were filed to appellee's general pleading of negligence. Hence the court was authorized to submit any issues of negligence raised by the evidence. Agnew v. Coleman County Electric Cooperative, 1954, 153 Tex. 587, 272 S.W.2d 877; Kainer v. Walker, Tex.Sup.1964, 377 S.W.2d 613. It may be observed here that substantially the same issue as Special Issue No. 1 has been approved in Gordon v. Levias, Tex.Civ.App., 356 S.W.2d 462, and Manley v. Wilson, Tex.Civ.App., 313 S.W.2d 339, writ ref., n. r. e.

There is no merit in appellant's contention that appellee was guilty of negligence as a matter of law in failing to have his automobile under proper control and in failing to keep a proper lookout. There are numerous cases that hold that in the case of moving motor vehicle collisions the ultimate issues of fact are for the jury in determining whether plaintiff has been guilty of contributory negligence. Biggers v. Continental Bus System, Inc., 1957, 157 Tex. 351, 303 S.W.2d 359; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, writ ref., n. r. e.; City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref., n. r. e.; Alamo Motor Lines v. Maldonado, Tex.Civ.App., 271 S.W.2d 693, writ ref., n. r. e.

Appellant complains that the trial court erred in refusing to submit its requested Special Issues Nos. 15 and 16 inquiring as to whether appellee was operating his automobile at a negligent rate of speed and if so whether such negligence was a proximate cause of the collision in question. There is no evidence of excessive speed on the part of appellee other than the testimony of a police office that the car skidded 38 feet. However, assuming that there was sufficient evidence to raise the issue, it was properly refused because it was included in the general issue of proper control. Schuhmacher Co. v. Holcomb, Tex.Civ.App., 174 S.W.2d 637, aff'd 142 Tex. 332, 177 S.W.2d 951; Northeast Texas Motor Lines v. Hodges, 138 Tex. 280 158 S.W.2d 487; Fullingim v. Dunaway, Tex.Civ.App., 267 S.W.2d 483; Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220. It should be noted here that appellant did not except to the submission of the issue on proper control as it could have done. See the recent ruling of our Supreme Court in Barclay v. Pitts Sand & Gravel Co., Texas Supreme Court, 1965, 387 S.W.2d 644. Had it done so, the court would in all probability have submitted the requested issues on speed.

Appellant next complains that the court erred in refusing to submit an issue on unavoidable accident. It is the contention of appellant that there was a parked car in the right-hand lane of 43rd Street about 150 feet from its intersection with Mangum Road, and that such car in some manner interfered with the rear view of the driver of the maintainer when he looked back to see if there was anything coming behind him. The driver did not testify that his view was interfered with by a parked car. The testimony of the driver of the maintainer shows that at the time he looked back he was passing or had just passed the parked car, and that he did not see appellee's car. Appellee and his wife testified that they were traveling in the right-hand lane of 43rd Street and that there was no parked car.

The evidence is undisputed that the seat of the driver of the maintainer was higher than the top of an automobile. The driver of the maintainer when sitting on such high seat, had he looked back, could have undoubtedly easily seen over a parked car, if such there was. Moreover, we cannot comprehend any possible connection between a car parked 150 feet back from the intersection, and a collision close to such intersection under the circumstances of this case. In construing the evidence in the light most favorable to appellant, we are of the opinion that there is no...