Cruse v. Daniels

• Decision Date: 18 June 1956
• Docket Number: No. 6611,6611
• Court: Texas Court of Appeals
• Parties: M. D. CRUSE, Sr., et ux., Appellants, v. Cecil DANIELS et al., Appellees.

Page 616

293 S.W.2d 616

M. D. CRUSE, Sr., et ux., Appellants, v. Cecil DANIELS et al., Appellees.

No. 6611.

Court of Civil Appeals of Texas, Amarillo.

June 18, 1956.

Rehearing Denied Sept. 5, 1956.

Huff & Splawn, Lubbock, Billy Hall, Littlefield, for appellants.

M. Hendricks Brown and Chas. J. Murray, Fort Worth, Strasburger, Price, Kelton, Miller & Martin, Dallas, Willard G. Street, Jr., Arthur P. Duggan, Jr., Littlefield, for appellees.

PITTS, Chief Justice.

This is an appeal from a judgment denying appeallants, M. D. Cruse, Sr., and wife, Dillie Cruse, any recovery upon a jury verdict for alleged damages in the sum of $40,000 in a suit appellants filed against appellees, Cecil Daniels, C. A. Matthews and Forbes Tatum, seeking such damages by reason of alleged injuries appellants received as a result of a motor vehicle collision occurring on or about September 8, 1954, at approximately 5:20 A.M. o'clock, about one mile east of Sudan in Lamb County, Texas, on U. S. paved highway No. 84 near a point where another road leading north to the stock yards nearby intersects the said highway. The highway where the collision occurred ran primarily east and west, was a straight, level, twolane highway with a slight downward slope several hundred yards each direction from the point of collision. Appellee, Cecil Daniels, in the course of his employment by appellee, C. A. Matthews, had been operating a large truck with trailer attached loaded with lumber and belonging to C. A. Matthews, traveling east on the said highway when immediately before the collision occurred he had pulled the truck and trailer over to his right and onto the south shoulder of the highway and stopped with the back end of the trailer extending some 24 to 36 inches on the paved part of the said highway. At the same time Harold Randall, an employee of appellee, Forbes Tatum, while in the course of his employment, was operating a large truck with trailer attached belonging to Tatum and was traveling west on his own right hand side of the said highway near the point of collision and had begun to turn his truck to his right off of the said highway and onto the road intersecting the highway and leading to the stock yard north of the highway, which stock yard was to be the destination of the Tatum truck at the time. There was a third truck headed west but parked in the bar ditch with its headlights on, situated south of the highway and along the south side of the Matthews truck being operated and controlled by Daniels. Immediately before the collision appellant, M. D. Cruse, Sr., was operating his 1952 Ford automobile east on his right hand side of the highway approaching the trucks mentioned and the point of collision from the west with his wife, appellee, Dillie Cruse, riding by his side in the seat with him. The weather was fair and it was still dark in the early morning. All of the motor vehicles mentioned had their lights turned on. Immediately after appellants drove past the top of the slope several hundred yards west of the trucks mentioned and the point of collision, they could see the truck lights. Appellee, Dillie Cruse, saw the motor vehicle lights 'all bunched up' ahead of them and 'didn't know what was wrong' but she remarked to her husband 'there must be some trouble.' However, appellants proceeded east on the highway until their automobile collided with the back end of the trailer attached to the truck owned by Matthews and being operated by his employee, Daniels. The collision resulted in the alleged personal injuries of appellants and the damages done to their automobile.

The case had been previously tried when appellants were denied any recovery upon a jury verdict and at which time Forbes Tatum was not then made a party to the suit. The trial court granted a new trial because of some alleged irregularities separately and apart from the trial procedure or the jury verdict. Appellants thereafter amended their pleadings and made Forbes Tatum a party defendant. The case was then again tried to a jury which found that under all of the facts and circumstances Cecil Daniels was negligent in leaving a portion of the Matthews truck-trailer extending on a portion of the paved highway and that such was a proximate cause of the collision. The jury further found in effect that the Matthews truck and trailer being operated by Daniels had lights on the rear thereof visible for a distance of 500 feet away and it further found in effect that there existed a clear and unobstructed space with sufficient width for other vehicles to pass on the highway between the Matthews truck and trailer and the Tatum truck and trailer. The jury also found that appellant, M. D. Cruse, Sr., was guilty of four separate acts of contributory negligence, each of which was found to be a proximate cause of the collision, namely: failure to keep a proper lookout, driving at an excessive speed rate under the circumstances, failure to apply his brakes and a failure to heed the warning of his wife, Dillie Cruse, when she warned him there appeared to be trouble ahead of them. The jury likewise found it was not an unavoidable accident.

The trial court rendered judgment accordingly against appellants and for appellees from which judgment appellants appealed and have predicated their appeal upon seven points of error. Nowhere have appellants challenged by a point of error any jury finding. Points of error are an indispensable part of a brief on appeal and an alleged error not embraced in any point of error should not be considered. Wagley v. Fambrough, Tex.Civ.App., 163 S.W.2d 1072, affirmed 140 Tex. 577, 169 S.W.2d 478.

In Point One appellants charge error was committed because the trial court granted an instructed verdict for appellee, Forbes Tatum, and they claim that the evidence raised issues of fact against Tatum and that when such evidence was removed from the consideration of the jury by giving an instructed verdict for Tatum, their rights were prejudiced as against the other appellees. The record reveals that the case was submitted to the jury without mentioning Forbes Tatum or his employee, Harold Randall. The trial court's judgment reveals that it sustained the motion of Forbes Tatum for an instructed verdict and thereby denied any recovery as against him, but we have failed to find in the record any such instruction given to the jury or any jury verdict in compliance therewith on behalf of appellee, Forbes Tatum, or any withdrawal of any of the evidence concerning the acts and conduct of the driver of Forbes Tatum's truck from the consideration of the jury. By its acts the trial court found there existed no evidence of probative force raising any issue as against appellee, Forbes Tatum. Appellants contend that Tatum's employee and driver of his truck, Harold Randall, failed to keep a proper lookout and failed to use all of the means at his command under the doctrine of discovered peril to prevent the collision. But appellants proved by their witness, Harold Randall, that he was driving the Tatum truck, meeting appellants' approaching automobile, on his own side of the highway, turning to his right off of the highway north onto an intersecting road leading to the stockyards only a short distance from the point of collision when appellants crashed their automobile into the rear of the Matthews trailer attached to the truck and caused their own injuries without touching the Tatum truck or trailer. There was nothing Harold Randall could have done under the doctrine of discovered peril to have prevented the collision or injuries. Appellants also proved by Randall that he was in his proper place on the highway and assuming that he may have failed to keep a proper lookout, such could not have aided or prevented the occurrence of the collision. Appellants also say that the bright lights on the approaching Tatum truck blinded them as they approached and appellant, M. D. Cruse, Sr., the driver of their automobile, testified that the said lights blinded him instantly or 'only a breath' before the collision occurred. However, appellants proved by Harold Randall that he dimmed his headlights soon after he topped the hill several hundred yards east of the point of collision and as soon as he saw the headlights of other approaching motor vehicles. They likewise proved by him that he was in the position of turning his truck north off of the highway when the collision occurred, in which event his headlights would have shined north of the highway and not toward appellants as he turned. The record reveals that appellants presented for submission requested special issues concerning the failure of Tatum's driver, Harold Randall, to keep a proper lookout and his failure to use all means at his command under the doctrine of discovered peril and such were refused by the trial court, but we are unable to find in the record any requested issues presented by appellants about bright lights or Randall's failure to dim his lights and the corollary issues in connection therewith as provided for in Rule 279, Texas Rules of Civil Procedure. In appellants' exceptions and objections to the court's charge they state, in paragraph 18 thereof and on page 44 of the transcript, that they would request such issues but we have failed to find such in the record and none has been pointed out to us. Appellants proved by Randall that he dimmed his lights and such testimony was not contradicted although appellants testified they saw bright lights instantly before the collision occurred. In any event, the seeing of bright lights instantly before the collision occurred could not have caused the contributory negligence of M. D. Cruse, Sr., when he, according to the unchallenged jury findings, was driving at an excessive rate of speed immediately before the collision and failed to keep a proper lookout, to apply his brakes, or to heed the warning of danger his wife gave him as they approached the scene of...