Consolidated Furniture Co. v. Kelly
| Decision Date | 06 June 1963 |
| Docket Number | No. 13933,13933 |
| Parties | CONSOLIDATED FURNITURE COMPANY, Inc., et al., Appellants, v. Marion Lee KELLY, Appellee. |
| Court | Texas Court of Appeals |
The Kempers, Houston, John D. Richardson, Houston, of counsel, for appellant.
Richard H. Powell, Paul A. Tucker, Houston, for appellee.
This is a suit for damages for personal injuries growing out of a collision between an automobile driven by appellee and a truck owned by appellant. The case was tried before a jury which found appellant guilty of acts of negligence and gross negligence and found appellee guilty of acts of contributory negligence. The jury found in favor of appellee (plaintiff in the trial court) on certain issues establishing the 'discovered peril' theory of recovery. The trial court entered judgment in favor of the plaintiff for his actual damage as found by the jury.
The principal question to be determined is whether or not the evidence supports the affirmative answers returned by the jury to Special Issues Nos. 3, 4, and 5, reading:
Special Issue No. 3: 'Do you find from a preponderance of the evidence that Curtis Carter Solomon, after he had discovered, if he did discover, the Plaintiff's, Marion Lee Kelly's perilious position, if you have so found, realized that such Plaintiff would not in all reasonable probability be able to extricate himself from such perilious position in time to avoid injury? * * *
'If you have answered Special Issue No. 3 'We do', and only in that event, then answer:'
Special Issue No. 4: 'Do you find from a preponderance of the evidence that the said Curtis Carver Solomon, made such discovery and had such realization, if you have so found within such time and distance as that by the exercise of ordinary care in the use of all means at his command consistent with the safety of himself, and his vehicle, he could have avoided the collision in question? * * *
'If you have answered Special Issue No. 4 'We do', and only in that event, then answer:'
Special Issue No. 5: 'Do you find from a preponderance of the evidence that after making such discovery and having such realization, if you have so found, the said Curtis Carver Solomon, failed to use ordinary care in the use of all means at his command consistent with the safety of himself, and his vehicle?'
Appellee Kelly was driving a 1949 Ford about 40 or 45 miles per hour on a concrete highway. As he was coming around a curve two, three or four blocks from the point of collision, he saw the lights of appellant's vehicle. He testified that he 'called for dimmers twice' with no response. When he was 'coming pretty close,' he took his foot off the gas, and by that time he could see the bulk or outline of appellant's van across the road, at which time he was 35 or 45 feet away from the truck. He immediately applied his brakes, sounded his horn and skidded into the truck. He testified that he was blinded 'to a certain extent' by the lights of the truck until he was about 40 or 45 feet from it.
The defendant Solomon was driving appellant's truck-tractor hauling a loaded furniture van. Just prior to the accident he stopped the vehicle in front of his father's house and had begun backing slowly into his father's driveway. When he first saw the Kelly vehicle, it was 'in that curve,' which was three or four blocks away. At that time the van was across the highway and the tractor was in the proper lane with its lights shining in the direction from which appellee was approaching. Solomon testified:
'Q When you first saw his lights in the curve, did you attempt to bring your truck across the other portion of the highway and straighten it up?
'A No, sir, I didn't.
'Q Did you back up any faster?
'A No, sir, not as I can remember.
'Q Just stayed at the same speed?
'A Yes, sir.
'Q Did you reach up and blow that horn with your left hand, which was to your left?
'A I can't recall, I don't remember.
'Q Did you blink your lights?
'A Yes, sir, I blinked my lights.
'Q You blinked your lights on the truck?
'A Yes, sir, I blinked my lights on the truck and I had a flashlight in one hand and I waved it to him.
* * *
'Q Now, so that we don't misunderstand each other, your blinker lights were not on----
'A Were not on.
'Q --when you were backing up that truck?
'A That's right, not on.
'Q And you didn't flash your dimmers?
'A Yes, sir, I flashed my dimmers.
'Q Did you keep flashing them as he came down or do you remember telling me that you didn't flash them at all?
'A I couldn't recall that, sir.
'Q Is it possible?
He also testified:
'A As I caught the reflection of the light and he come around the curve, well, I looked up then.
'Q And you saw him coming?
'A I looked up.
'A The curve was probably three or four blocks.
* * *
* * *
'Q You realized at that time that if he didn't stop that he was going to hit you, did you not, if he didn't see you?
'A If the guy didn't see me he was going to hit me.
'Q Did you realize----
'A Well, naturally, he hit me.
'Q And you said on deposition that since you were across the highway, well, naturally he'd hit you?
'A Yes.
'Q And you realized that, didn't you?
'A Yes, sir.'
In response to questions by his lawyer, Solomon testified:
'Q What car was that?
'A That was Mr. Kelly's car.
'Q What did you do when you saw him?
'A I continued backing up and I hit my blinkers a couple of times, I was waving my flashlight and trying to attract his attention.'
He also testified that when he started backing up he cut his wheels and threw the trailer back into the driveway, which caused his lights to shine to his left, and as he continued to back and turn his wheels, the lights would shift to the right and that 'they were not laying down the highway to blind no one.'
The officer investigating the collision testified that the accident occurred at 8:40 p. m. The road was approximately 20 feet wide at the point of the collision, which was not at an intersection, but at a private driveway. He testified that when he arrived the position of the tractor indicated that its lights would have been in such a position at the time of the collision as to interfere with the vision of appellant Solomon. He testified that under the existing conditions a car going 40 miles per hour could have been stopped in 75 feet, including reaction time.
The collision happened in a rural area where there were few houses. The road was dry. At the time of the collision the tractor was on its proper side of the road and the van extended across appellee's side of the road and the shoulder on that side. The van was 38 feet long. No clearance lights or reflectors were located on that part of the side of the van occupying appellee's side of the road.
The jury, in response to the issues submitted to it, found that Solomon was not a reckless and incompetent driver; that his failure to turn left and drive his vehicle forward into the driveway was not negligence; that his failure to post a lookout to warn approaching vehicles was not negligence; that his failure to signal by 'blinker turning lights' his intention to turn left was negligence and a proximate cause of the collision, but was not gross negligence; that his failure to post flares was negligence and a proximate cause of the collision and constituted gross negligence; that his blocking of the oncoming lane of traffic was not negligence; that his failure to speed up the backing of his vehicle was not negligence; that his failure to pull his vehicle forward to unblock the oncoming lane of traffic was not negligence; that his failure to sound his horn was not negligence; that he did not block traffic longer than was prudent under the circumstances; that backing the vehicle across the highway under the circumstances was not negligence; that he did not fail to maintain a proper lookout; that he negligently failed to dim his lights, which was a proximate cause of the collision; that his failure to yield the right of way was a proximate cause of the collision, but was not gross negligence; that his failure to operate his vehicle entirely upon its own right-hand side of the highway was a proximate cause of the colision, but was not gross negligence; that the stopping of the vehicle upon the roadway by Solomon under the circumstances was not a proximate cause of the collision; that immediately before the collision in question Marion Lee Kelly was not acting under an emergency not proximately caused by any act or omission of his own; that Kelly's vision was blinded by the glare of headlights just prior to the collision; that after becoming blinded he failed to slow his car, which constituted negligence and a proximate cause of the collision; that he did not fail to apply his brakes immediately before the accident; that Kelly failed to keep a proper lookout which was a proximate cause of the collision; and that the collision was not the result of an unavoidable accident.
Appellant contends that there is no evidence that Solomon had any reason to believe that Kelly would fail to see the van and proceed on the same course without slowing down, that is, appellant contends that there is no evidence that Solomon actually realized appellee's peril. Appellant further contends...
To continue reading
Request your trial
-
Charles T. Picton Lumber Co. v. Redden, 523
...S.W.2d 233, 235, wr. ref. n.r.e.; Williams v. Voight, Tex.Civ.App., 264 S.W.2d 454, 457, wr. ref. n.r.e.; Consolidated Furniture Company v. Kelly, Tex.Civ.App., 369 S.W.2d 53, 58. Especially is the above applicable in the absence of requested special issues of sole proximate cause of the co......
-
Rogers v. Stimson Contracting Co., 16224
...appellant to judgment in view of the jury's answers finding contributory negligence on the part of Jerry Rogers. Consolidated Furniture Co. v. Kelly, Tex.Civ.App., 369 S.W.2d 53; (2) the issues were either not drawn in 'substantially correct wording',* Rule 279 T.R.C.P., or were covered by ......
-
Meehan v. Pickett, 7204
...cited. In any event, we do not find that there was an abuse of discretion in refusing to admit the photographs. Consolidated Furniture Company v. Kelly, 369 S.W.2d 53, 59 (Tex.Civ.App.--Houston, 1963, no Point seven complains of the overruling of several exceptions to plaintiff's pleadings;......
-
State v. Clarke
...252 S.W.2d 743; 62 A.L.R.2d p. 689; Richardson v. Missouri-K-T Ry. Co., Dis. Tex.Civ.App., 205 S.W.2d 819; Consolidated Furniture Co. v. Kelly, Tex.Civ.App., 369 S.W.2d 53. We cannot say the Trial Court abused his discretion in excluding the motion pictures; and in any event, in view of the......
-
Table of Cases
...Consolidated Edison, Inc. v. Northeast Utilities, 332 F.Supp.2d 639, (S.D.N.Y., 2004), §2.400 Consolidated Furniture Co. v. Kelly, 369 S.W.2d 53 (Tex. 1963), §44.301 Constans v. Choctaw Transport, 712 So.2d 885 (La.Ct.App. 1997), §40.500 Continental Concrete Pipe Corp. v. Century Rd. Builde......
-
Table of Cases
...Consolidated Edison, Inc. v. Northeast Utilities, 332 F.Supp.2d 639, (S.D.N.Y., 2004), §2.400 Consolidated Furniture Co. v. Kelly, 369 S.W.2d 53 (Tex. 1963), §44.301 Constans v. Choctaw Transport, 712 So.2d 885 (La.Ct.App. 1997), §40.500 Continental Concrete Pipe Corp. v. Century Rd. Builde......
-
Table of Cases
...Edison, Inc. v. Northeast Utilities, 332 F.Supp.2d 639, (S.D.N.Y., 2004), §2.400 B-13 Table of Cases Consolidated Furniture Co. v. Kelly, 369 S.W.2d 53 (Tex. 1963), §44.301 Constans v. Choctaw Transport, 712 So.2d 885 (La.Ct.App. 1997), §40.500 Continental Concrete Pipe Corp. v. Century Rd.......
-
Photographs, slides, films and videos
...Inc. , 684 N.Y.S.2d 560 (1999); Vollert v. Wisconsin Rapids, 27 Wis.2d 171, 133 N.W.2d 786 (1965); Consolidated Furniture Co. v. Kelly, 369 S.W.2d 53 (Tex., 1963). Abraido v. 2001 Marcus Ave., LLC , 126 A.D.3d 571, 4 N.Y.S.3d 43 (Supreme Court, App.Div., 1st Dept., N.Y., 2015). In a slip an......