Claybrook v. Acreman
| Decision Date | 31 October 1963 |
| Docket Number | No. 6636,6636 |
| Citation | 373 S.W.2d 287 |
| Parties | Rosco S. CLAYBROOK et ux., Appellants, v. W. M. ACREMAN et al., Appellees. |
| Court | Texas Court of Appeals |
Fulmer, Fairchild & Badders, Nacogdoches, for appellants.
McClain & Harrell, Conroe, for appellees.
This is an action for damages for personal injuries sustained by plaintiffs in a collision between a pickup truck and an automobile. Judgment was rendered for defendants based upon the answers of the jury to special issues.
Plaintiff Rosco Claybrook was driving the pickup truck with plaintiff, Ethel Claybrook, his wife, riding with him. Defendant Billy Joe Acreman, a minor , was driving the automobile. Liability was also sought against defendant, W. M. Acreman, his father, on the theory of negligent entrustment.
The jury found the defendant, Billy Joe Acreman, to be driving his automobile in excess of 60 miles per hour, and that it was a proximate cause of the collision. Also, that this defendant was driving at a rate of speed in excess of that which a person of ordinary prudence would have driven under the same or similar circumstances, which was a proximate cause of the collision. That this defendant was not negligent in driving so that his automobile was wholly or partly over on his left side of Highway 105 at the time of the collision. That this defendant was a reckless driver, but his father had no notice of such state of facts. That plaintiff Rosco Claybrook failed to keep his truck entirely upon his right hand side of the road, which was negligence and a proximate cause of the collision. That this plaintiff drove his truck across the center line of the highway on the defendant's right hand side of the highway for the purpose of making a left turn, which was negligence and a proximate cause of the collision. That this plaintiff failed to keep a proper lookout which was a proximate cause of the collision. That this plaintiff failed to yield the right-of-way to defendant's automobile, which was negligence and a proximate cause of the collision. That the collision was not an unavoidable accident. That this plaintiff was not guilty of several other acts of negligence as submitted.
Plaintiffs' pickup truck and defendant's automobile were traveling in opposite directions upon the highway. It is clear from the pleadings, evidence and issues that defendant's theory of the case was that plaintiffs' pickup truck was driven onto the wrong side of the highway to make a left turn off of the highway and when the driver saw he could not clear the path of defendant's car in time to avoid an accident, that plaintiff attempted to drive the pickup truck back to the right side of the highway, when the collision occurred. Plaintiffs contend first that the trial court erred in submitting certain special issues to the jury for the reasons that four of the issues commented on the weight of the evidence, by assuming disputed facts, and the fifth was a shade of another issue and unduly emphasized the defendant's theory of the case. Special Issue #12 read as follows:
'Do you find from a preponderance of the evidence that, prior to the accident in question, Rosco S. Claybrook failed to keep his pickup truck entirely upon his right-hand side of the road toward the direction in which he was traveling as he proceeded Eastwardly upon leaving the trading post?
'Answer 'We do' or 'We do not'.
'ANSWER: 'We do'.'
Special Issue #15 read as follows:
'Do you find from a preponderance of the evidence that Rosco S. Claybrook, prior to the collision in question, drove his pickup truck across the center line of the highway onto Defendant's right-hand side of the highway for the purpose of making a left turn?
'Answer 'We do' or 'We do not'.
'ANSWER: 'We do'.'
Plaintiffs contend the court erred in submitting Issue #15 because it was another shade of the inquiry contained in Issue #12, and therefore commented on the weight of the evidence by unduly emphasizing defendant's theory that plaintiffs' vehicle was in its left lane. These two issues submit shades of the same defensive theory to the jury and therefore are objectionable. Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280; Covington v. Howard, Tex.Civ.App., 347 S.W.2d 802.
The four issues complained of as commenting on the weight of the evidence, by assuming disputed facts, were #15 which is set out above, and the following:
Special Issue #18
'Do you find from a preponderance of the evidence that Plaintiff, after having driven into the lane for Westbound traffic, if that you have so found, failed to accelerate the speed of his vehicle so as to clear the highway and move to the road leading to the Johnson home?
'Answer 'We do' or 'We do not'.
'ANSWER: 'We do'.'
Special Issue #24
'Do you find from a preponderance of the evidence that Plaintiff, on the occasion in question, immediately prior to the collision, suddenly drove his pick-up truck to his right across the highway to the South, when such movement could not be made in safety?
'Answer 'We do' or 'We do not'.
'ANSWER: 'We do'.'
Special Issue #38
'Do you find from a preponderance of the evidence that on the occasion in question, Rosco S. Claybrook failed to yield the right-of-way to the Acreman vehicle?
'Answer 'We do' or 'We do not'.
'ANSWER: 'We do'.'
It is urged that the phrase in Issue #15 'for the purpose of making a left turn' assumed plaintiffs' vehicle was in its left hand lane because plaintiffs were turning left to visit the Johnson home; that the phrase in Issue #18 'and move to the road leading to the Johnson home' assumed that plaintiffs' vehicle was in its left hand lane because plaintiffs were turning left to visit the Johnson home; that Issue #24 assumed plaintiffs' vehicle was in its left hand lane; that Issue #38 assumed defendant had the right-of-way and therefore plaintiffs' vehicle was in the wrong lane.
It is apparent that Special Issue #24 assumes the plaintiffs' pickup truck was on the left hand side of the highway, and therefore is...
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