Cooper v. Miller, CA-2-1441.
| Decision Date | 22 August 1974 |
| Docket Number | No. CA-2-1441.,CA-2-1441. |
| Parties | Essie COOPER, Plaintiff, v. Ronald Lynn MILLER and Lee Way Motor Freight, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Loren L. Purvines, Purvines & Saunders, Panhandle, Tex., for plaintiff.
R. A. Wilson, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, Tex., for defendants.
The above case came on to be tried before the court without a jury on the 19th day of August, 1974 with all parties being present or represented by counsel in open court and announcing ready for trial. The parties presented their evidence and argument to the court and the court has considered the briefs filed on behalf of each party. After consideration of the above the court files this memorandum opinion which shall constitute its Findings of Fact and Conclusions of Law.
There is a complete diversity of citizenship between the plaintiff and defendants and the amount in controversy exceeds $10,000 and this court has jurisdiction over the parties and the subject matter of this suit by virtue of 28 U.S.C. § 1332.
On September 29, 1972 a truck owned by Lee Way Motor Freight, Inc. and driven by the defendant, Ronald Lynn Miller, with a trailer attached, was proceeding in a westerly direction in the outside or right lane of Interstate Highway 40 in Groom, Texas. The truck was following an automobile driven by Mr. Nathan Helton and after the truck had been in the position in the rear of Mr. Helton's automobile for about four blocks the truck suddenly struck Mr. Helton's automobile from the rear and propelled the automobile to the right and off of the highway. As Mr. Helton's automobile left the highway it was propelled into an automobile parked along the residence of Mrs. Essie Cooper which faced south on the highway. Mr. Helton's car struck Mrs. Cooper's car, a Bonneville Pontiac four-door sedan, and the force drove Mrs. Cooper's car into her residence. The truck overran Mr. Helton's car and hit the front porch which was torn off of the residence and the house was severely damaged, both on the outside and in the interior, and was moved off of its foundation. As the truck went over Mr. Helton's car, it sideswiped the porch and completely demolished it before it turned over on its side.
Testimony was introduced in which the witness stated that the driver of the truck, Mr. Miller, had made the remark to him shortly after the accident that he was in the process of lighting a cigar and looking into his mirror when he ran into Mr. Helton's car. The court finds that Mr. Ronald Lynn Miller, who was the servant and employee of Lee Way Motor Freight, Inc., was negligent in that he failed to keep a proper lookout on the occasion in question and that he failed to apply his brakes in order to avoid a collision and that he further failed to keep his vehicle under proper control under the circumstances. Further the court finds that each of said acts was not only negligence but was a proximate cause of the collision in question.
Mrs. Essie Cooper, plaintiff herein, was at that time employed as the operator of a self-service gasoline station which was located immediately south across Interstate Highway 40 from her residence and she was on duty at this gas station at such time. No person was in or about her residence at the time of the accident. Mrs. Cooper heard the initial crash, looked up and then observed the truck overriding Mr. Helton's automobile and being propelled into her automobile and residence and was an eye witness to these occurrences. Mrs. Cooper was not injured nor was there any direct force to her body that caused any injury to her body, although she is claiming, as will hereinafter be discussed, that the witnessing of the accident aggravated a preexisting physical ailment which she had and resulted in damages to her.
The parties have stipulated that the automobile belonging to Mrs. Cooper was completely wrecked and that she sustained a loss of $600.00 and that the damages to the interior furnishings of the house were stipulated at $300.00.
The court...
To continue reading
Request your trial
-
Schiltz v. Cullen-Schiltz & Associates, Inc.
...direct property damage incurred. In support see Hales v. Green Colonial, Inc., 490 F.2d 1015, 1021 (8 Cir. 1974) and Cooper v. Miller, 380 F.Supp. 409, 411 (N.D.Tex.1974). The trial court erred in giving instruction 20 since it limited plaintiff's extent of recovery in the respect determine......
-
Barrera v. E. I. Du Pont De Nemours and Co., Inc.
...by the Texas Supreme Court, and the restatement of Torts, Section 436(a) 3; likewise, the Federal decision of Cooper against Miller, in 380 F.Supp. at 409, 4 and had the court charged the Jury as such, then we may have averted a finding of liability and damages that might otherwise eventuat......