Covington v. Howard, 3820
| Decision Date | 08 June 1961 |
| Docket Number | No. 3820,3820 |
| Parties | Alberta COVINGTON, a Widow, and Clara Smith, a Widow, Appellants, v. Kenneth HOWARD, Appellee. |
| Court | Texas Court of Appeals |
John B. Faulkner, Waco, for appellants.
O. F. Jones, III, Waco, for appellee.
The action is for damages growing out of an automobile collision at the intersection of Washington and First Streets in the City of Waco. Alberta Covington, a widow, and her mother, Clara Smith, went to trial on their first amended original petition, and pertinent to this discussion they alleged that defendant, Howard, was guilty of negligence in the following particulars that proximately resulted in damages to them. They are to the effect:
(a) In failing to keep a proper lookout;
(b) In failing to apply the brakes on his car in sufficient time to avoid the collision in question;
(c) In failing to keep the car operated by him under proper control at the time and on the occasion in question;
(d) In failing to yield the right of way to the car with which he collided at the time and on the occasion in question;
(e) In failing to sound his horn to warn plaintiff at the time and on the occasion in question;
(f) In failing to turn to his right to avoid the collision in question;
(g) In operating his vehicle at an unreasonable speed under the circumstances;
(h) In operating his vehicle at a speed that was in violation of the laws of the State of Texas and the City of Waco, Texas.
Defendant went to trial on his second amended answer, and pertinent to this discussion, after his general denial, plead specifically that Alberta Covington was guilty of acts of omission and commission, each of which, acting jointly or severally, separately or concurrently, was the proximate cause of the collision and resulting injuries, if any, to her, and was also the sole cause and a new and independent cause and a proximate contributing cause to the injuries claimed by Clara Smith. They are to the effect:
(a) Plaintiff Alberta Covington failed to see the car of defendant, Kenneth Howard, while it was crossing the Washington Street Bridge;
(b) Plaintiff Alberta Covington failed to see defendant Kenneth Howard's car as it emerged from the Washington Street Bridge;
(c) Plaintiff Alberta Covington failed to look to her left as she started across Washington Avenue;
(d) Plaintiff Alberta Covington started her automobile across Washington Avenue at a time when such movement could not be made with safety;
(e) Plaintiff Alberta Covington failed to obey the stop sign erected at the entrance to the intersection by stopping her car there;
(f) Plaintiff Alberta Covington failed to yield the right-of-way to defendant Kenneth Howard who was so close to the intersection as to constitute an immediate hazard;
(g) Plaintiff Alberta Covington failed to apply her brakes in time to avoid a collision;
(h) Plaintiff Alberta Covington failed to apply her brakes prior to the collision;
(i) Plaintiff Alberta Covington failed to turn her automobile to the right in an effort to avoid the collision.
The jury in its verdict convicted Alberta Covington, the plaintiff and the driver of the car, of negligence that proximately caused the accident and resulting injuries to her mother, Clara Smith, who was a passenger in the car, and also convicted the defendant, Howard, of negligence that proximately caused the accident and resulting injuries to Clara Smith, which verdict was received by the court and the court granted defendant's motion for judgment and awarded to Clara Smith the sum of $25, being the sum found by the jury, together with legal interest from date of judgment. The court decreed that Alberta Covington take nothing and taxed her with one-half of the costs, and taxed Howard with one-half of the costs. Plaintiffs seasonably filed their motion for new trial and it being overruled have perfected their appeal to this court.
The judgment is assailed on five points; they are to the effect that the court erred:
(1) In its submission of special issues Nos. 26 and 30 and their related issues because they amounted to a dual submission of the various shades and phases of the single, ultimate and controlling issues of 'proper lookout';
(2) There was no evidence to support the submission of special issues Nos. 26 and 30 and related issues;
(3) In striking and removing from the jury's consideration the medical testimony of Dr. Loyal K. Wilson as it related to the injuries of plaintiff, Clara Smith, because his testimony was material and admissible;
(4) In allowing a police officer to testify that he did not give the defendant a ticket for driving while intoxicated because defendant was allowed to introduce evidence which was inadmissible before the jury;
(5) In failing to grant a new trial because the cumulative effect of errors probably caused the rendition of an improper verdict.
Appellant's Point 1 is substantially to the effect that the court erred in its submission of Issues 26 and 30 and their related issues because they amounted to a dual submission of the various shades and phases of the single ultimate and controlling issue of proper lookout. This point was preserved by plaintiffs' objection to the court's charge and the error was assigned in the motion for new trial.
A statement is necessary. First of all, the defendant did not plead as a defense that Alberta Covington failed to keep a proper lookout, but did plead nine separate distinct acts of negligence against her, and specifically plead that each of these acts, jointly and severally, separately and concurrently, was a proximate cause of the collision and resulting injuries, if any, to plaintiff, and further plead that each was also the sole cause of the collision. The court did not submit the issue of proper lookout as to Alberta Covington. Issue 26 was: 'Do you find from a preponderance of the evidence, if any, that plaintiff Alberta Covington failed to see the automobile of the defendant, Kenneth Howard, as it emerged from the Washington Street bridge?' to which the jury answered 'Yes.' The jury in answer to Issue 27 found that such failure was negligence, and further found in answer to Issue 28 that it was a proximate cause of the accident. Defendant plead specifically: '(a) Plaintiff Alberta Covington failed to see the car of defendant Kenneth Howard, while it was crossing the...
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