Cunningham v. Suggs

• Decision Date: 28 October 1960
• Docket Number: No. 3559,3559
• Citation: 340 S.W.2d 369
• Parties: E. C. CUNNINGHAM et ux., Appellants, v. John SUGGS, Appellee.
• Court: Texas Court of Appeals

Page 369

340 S.W.2d 369

E. C. CUNNINGHAM et ux., Appellants, v. John SUGGS, Appellee.

No. 3559.

Court of Civil Appeals of Texas, Eastland.

Oct. 28, 1960.

Rehearing Denied Nov. 23, 1960.

Huffaker & Green, Tahoka, for appellants.

Crenshaw, Dupree & Milam, Lubbock, for appellee.

COLLINGS, Justice.

E. C. Cunningham and wife brought suit against John Suggs for damages for personal injuries sustained by Mrs. Cunningham in an automobile collision which they alleged was proximately caused by defendant's negligence. Suggs denied any negligence proximately causing the collision and filed a cross action against the plaintiff for damages to his automobile which he alleged were proximately caused by the negligence of Mrs. Cunningham. Trial was before a jury and, based upon the verdict, judgment was entered against plaintiffs in favor of the defendant Suggs on his cross action.

The collision in question occurred at about 8:30 p. m. on September 26, 1958, on the highway between Lamesa and Andrews, at a point where the highway runs approximately due east and west with a slight hill or rise to the west. The evidence indicated that the rise to the west was between 75 and 200 yards from the point of collision. Just prior to the collision Mrs. Cunningham was traveling east at a rate of about 30 miles per hour. It was a dark night, rain was falling heavily and at some points water was running across the highway.

The defendant John Suggs was a deputy sheriff of Anderews County. He was on the highway that night because he had been told that there was a dangerous water hole across the highway over in Dawson County and felt that he should proceed to the location of such dangerous water hole to warn travelers. He had just left a location on the highway in Andrews County where water covered the highway where he had stopped and remained for a time warning oncoming traffic of the danger. However his understanding of the more serious condition on the highway in Dawson County caused him to proceed east toward that water hole. Soon after he had started east with this purpose in mind, he received word on the radio, with which his car was equipped, that highway patrolmen had been sent to the water hole in DawsonCounty so he decided to turn around and return to the one he had been guarding. He was in the process of turning when Mrs. Cunningham approached from the west and collided with his car. In attempting to turn he circled to his left or north side of the road, then backed, swinging the front around toward the west until he had the back end of his vehicle off the south edge of the pavement. He was ready to proceed forward and complete his turn to the west when the collision occurred. At the time of the impact his car was occupying the south part of the highway with the front bumper about four feet south of the center stripe on the highway. The back wheels of Suggs' car were about 18 inches off the pavement on the south shoulder and his car was facing in a northwesterly direction, or almost at a right angle across the pavement. Suggs testified that before attempting to make the turn he looked for cars approaching from the west but saw none; that because of the rainy and stormy conditions existing at the time it was impossible to see a very considerable distance. He stated that Mrs. Cunningham's car was pretty close to him before he saw it; that he did not see it until it was about 100 feet from him which was the first that he knew of another automobile being on the highway in that vicinity.

Mrs. Cunningham had been warned to look out for water across the road. Actually, she had stopped at a water hole prior to the point of collision as she proceeded east along the highway. She testified that as she drove along she was watching for water holes; that when she passed over the knoll just west of the point of collision and turned her lights on bright after having dimmed them for care which she had met, she suddenly saw what she thought to be glistening water across the highway; that instead of glistening water it was Mr. Suggs' white car. She stated:

'I applied my brakes when I saw that I might be approaching water and when I saw it was a vehicle it was unbelievable.'

It was then that the collision occurred.

Appellee Suggs alleged eight grounds of neglignece on the part of Mrs. Cunningham. The jury found that she failed to keep her automobile under proper control under the circumstances and conditions existing at and just prior to the collision. The jury further found, however, that Mrs. Cunningham did not fail to keep a proper lookout; that she was not driving her automobile at an excessive rate of speed under the circumstances; that she did not fail to apply her brakes as soon as a person of ordinary prudence would have done under the same or similar circumstances, and that the failure of Mrs. Cunningham to turn her automobile to the left just prior to the collision was not negligence.

In numerous points appellants complain of the action of the court in entering judgment for Suggs on the basis of the findings in answer to special issues numbers 31 and 32, to the effect that Mrs. Cunningham failed to keep her automobile under proper control under the circumstances, and that such failure was a proximate cause of the collision. Appellants urge that the court erred in submitting such issues to the jury, and particularly urge that the court erred in refusing to disregard the answers to special issues numbers 31 and 32 because other issues inquiring as to the specific constituent elements of proper control were all answered favorably to Mrs. Cunningham and acquitted her of any negligence proximately causing the collision. Appellants contend that the findings of the jury concerning the specific constituent elements of proper control in favor of Mrs. Cunningham render immaterial their findings in answer to special issues numbers 31 and 32 which deal with the general issue of proper control and that the answers to issues 31 and 32 should be disregarded. In our opinion, appellants' contention in this respect is well taken. Findings concerning specific issues of negligence control over an answer to a general issue of negligence. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Holly v. Bluebonnet Exp. Co., Tex.Civ.App., 275 S.W.2d 737; 41-B Tex.Jur. 795, 796; Sproles v. Rosen, Tex.Com.App., 126 Tex. 51, 84 S.W.2d 1001; Western Gulf Petroleum Corp. v. Frazier Jelke & Co., Tex.Civ.App., 163 S.W.2d 860, (Ref. W.M.); Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Garza v. San Antonio Transit Co., Tex.Civ.App., 180 S.W.2d 1006; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938, affirmed Tex.Com.App., 29 S.W.2d 975.

We cannot agree with appellee's contention that under the facts of this case there were other constituent elements of proper control not otherwise submitted or covered in any way by any of the answers of the jury acquitting Mrs. Cunningham of specific acts of negligence. All of the claimed acts of negligence on the part of Mrs. Cunningham pleaded by Suggs which were submitted to the jury were found favorable to her except that of failure to keep proper control. Other allegations of negligence not submitted which could have been constituent elements of proper control were merely different shades of the issues submitted and found favorable to Mrs. Cunningham. The allegations of negligence not submitted had to do with the conduct of Mrs. Cunningham under all the circumstances in evidence of operating her car at the rate of speed which she did, or of failing to stop her car or to drive around Suggs' car. The pleadings and evidence show no constituent elements of Mrs. Cunningham's failure to have proper control of her car which are not covered by issues submitted to the jury. Since the requested issues presented merely different shades of the issues submitted and found by the jury favorably to Mrs. Cunningham, they are not available as constituent elements of proper control in support of the jury finding on that general issue. See Holly v. Bluebonnet Express Co., supra; Blaugrund v. Gish, Tex.Civ.App., 179 S.W.2d 257, affirmed Serna v. Cochrum, Tex.Civ.App., 290 S.W.2d 383, and cases there cited.

In answer to the following numbered issues it was found by the jury (6) that Mrs. Cunningham had the right of way, (7) that Suggs failed to yield the right of way to Mrs. Cunningham, (8) that such failure was a proximate cause of the collision; (12) that appellee attempted to turn his car from the direct course in which it had been traveling when such movement could not be made with safety, (13) that such action on the part of appellee was not negligence, (14) but that the act of so turning was a proximate cause of the collision; (2) that appellee stopped his automobile upon the paved or main traveled part of the highway when it was 'possible' to stop said vehicle off of the highway, (22) that such action on the part of appellee was not negligence, (23) but was a proximate cause of the collision.

In numerous points appellants contend that the findings that appellee failed to yield the right of way, attempted to turn his car from the course in which it had been traveling when such movement could not be made with safety, and stopped his vehicle upon the paved or main portion of the highway when it was possible to stop same off such part of the highway constituted violations of statutory duties imposed upon all persons who use the highways of this state. Appellants contend that the failure of appellee to yield the right of way to Mrs. Cunningham was a violation of sections 52 and 53 of Article 6701d, Vernon's Tex.Civ.St.; that his attempt to turn his car from the direct course in which it had been traveling when such movement could not be made with safety was a violation of section 68(a) of Article 6701d, V.T.C.S., and section (k) of Article 801, P.C.; that appellee's action in stopping his automobile upon the paved part of the highway...