Dallas Transit Co. v. Tolbert

• Decision Date: 29 June 1960
• Docket Number: No. 13618,13618
• Citation: 337 S.W.2d 617
• Parties: DALLAS TRANSIT COMPANY, Appellant, v. James TOLBERT et al., Appellees.
• Court: Texas Court of Appeals

Page 617

337 S.W.2d 617

DALLAS TRANSIT COMPANY, Appellant, v. James TOLBERT et al., Appellees.

No. 13618.

Court of Civil Appeals of Texas, San Antonio.

June 29, 1960.

Rehearing Denied Aug. 1, 1960.

Turner, White, Atwood, McLane & Francis, Dallas, for appellant.

Carter, Gallagher, Jones & Magee, Ben T. Warder, Jr., Leachman, Gardere, Akin & Porter, J. Carlisle Dehay, Jr., Dallas, for appellees.

BARROW, Justice.

This is a damage suit filed by James Tolbert and Harold C. Richardson, Inc., against Dallas Transit Company, for personal injuries to Tolbert and property damages suffered by Richardson, Inc. The case was tried to a jury and upon the verdict judgment was rendered in favor of Tolbert for his damages against Dallas Transit Company, and in favor of Harold C. Richardson, Inc., for its damages against Dallas Transit Company.

The pertinent facts are as follows: On the morning of April 18, 1958, at about 9:15, James Tolbert, an employee of Roadway Express, was driving a truck-trailer combination vehicle leased by Roadway Express from Harold C. Richardson, Inc. on North Central Expressway in the City of Dallas, during a misting rain. The equipment and load weighed approximately 54,000 pounds.

The Expressway in the vicinity is a divided highway running north and south. On the west side it is composed of three lanes for southbound traffic, and on the east side, three lanes for northbound traffic. Between the lanes for the southbound and northbound traffic there is a concrete divider or median which is elevated above the level of the roadways and is bordered on each side by a concrete curb. On each side of the Expressway there is a service road which runs parallel therewith. These service roads are separated from the main Expressway by grass median strips with concrete curbs on each side. About a block north of the place of the accident the Expressway has an overpass which goes over Hall Street. From the Hall Street Overpass proceeding south there is a down-hill incline to the place of the accident at an inlet road running at a slight angle from the service road to the southbound expressway.

Immediately before the accident the truck was proceeding south on the most westerly traffic lane at about forty miles per hour. A bus belonging to and operated by appellant, Dallas Transit Company, was proceeding south on the service road west of the Expressway. The bus was ahead of the truck but was traveling slower and the truck was overtaking it, and when the bus reached the inlet road it turned thereon and entered the Expressway in front of the truck. Just as soon as the bus entered the Expressway, about fifty feet in front of the truck, Tolbert applied the truck brakes and attempted to turn to his left in order to avoid hitting the bus. The truck jackknifed, thus turning the tractor part completely around until it faced in the opposite direction alongside the trailer part. In that condition the truck skidded diagonally down and across the southbound Expressway in a southwesterly direction, first striking the median island, then onto the northbound Expressway, until it collided with a northbound automobile driven by William L. Cowley in the middle traffic lane of the northbound Expressway.

By its first point appellant contends that the court erred, (1) in refusing to permit the reading of its Exhibit No. 11 to the jury, containing extracts from Dallas City Ordinances with reference to rules of right-of-way, and (2) in failing to instruct the jury as to the law with reference to the rules of right-of-way. The point must be overruled.

The court submitted to the jury only one right-of-way issue:

'Special Issue No. 10: Do you find from a preponderance of the evidence that at the time, place and occasion in question Plaintiff James Tolbert failed to timely yield right-of-way to defendant Dallas Transit Company's bus?'

In connection with this issue the court defined the term 'timely yield right-of-way' as follows: 'You are instructed that by 'timely yield right-of-way' is meant the yielding of the right-of-way in such time as a person of ordinary care and prudence would have yielded it under the same or similar circumstances,' being a substantial compliance with the statute. Art. 6701d, Sec. 20, Vernon's Ann.Civ.Stats. Thus the court did not leave to the jury the determination of the mixed question of law and fact as to who had the right-of-way under the facts and circumstances, but determined as a matter of law that appellant's bus had the right-of-way. The question submitted assumes that the bus did have the right-of-way. The effect of the question is to so instruct the jury. Certainly, the appellant could not have suffered injury in any way by the court's action. Rule 434, Texas Rules of Civil Procedure.

Appellant argues that in any event it should have been permitted to read to the jury its Exhibit No. 11, in order to rebut the testimony of appellee Tolbert that he had the right-of-way, and that appellant's bus did not. Certainly, if appellees had proved by Tolbert, over appellant's objection, his conclusion of law as to who had the right-of-way, it would have been error. It is elementary that the jury receives the law from the court and not from the witnesses. However, here we find from the record that the conclusions of law of the witness Tolbert were first injected into the case by appellant on cross-examination of the witness. On numerous occasions throughout cross-examination the witness was asked by appellant's counsel not only for his opinion as to who had the right-of-way, but as to his rights and duties with reference thereto. It is apparent that appellant brought about its own predicament and is not in a position to complain. We are of the opinion that appellant's first point is without merit.

By its second point appellant contends that the court erred in refusing to submit to the jury its requested Special Issues Nos. 1-A, 1-B, 1-C, 2-A, 2-B, 2-C. Issue 1-A inquired if James Tolbert failed to yield the right-of-way to the automobile driven by William Cowley. One-B inquired if such failure was negligence. One-C inquired if such negligence was a proximate cause of the injuries complained of. Issue 2-A inquired if Tolbert drove the truck onto the left-hand side of the highway 'instead of the right-hand side of the highway.' Two-B inquired if such action was negligence. Two-C inquired if such action was a proximate cause of the injuries complained of.

The evidence conclusively establishes the fact that when the truck jack-knifed, with the driver riding backward in the cab, it skidded entirely out of control from that point on the southbound traffic roadway over to the left-hand side, and thence on and across the median island and onto the northbound traffic roadway where it collided with the Cowley automobile.

The rule has been stated in 42 C.J. 932, Motor Vehicles, Sec. 644, as follows:

'* * * an operator who has lost control of his car is not responsible for what happens thereafter unless his negligence in the management of the car was the cause of his loss of control.' See also 60 C.J.S. Motor Vehicles Sec. 298.

See Renner v. National Biscuit Co., Tex.Civ.App., 173 S.W.2d 332.

The evidence shows conclusively that at the time the truck jack-knifed and went out of control it was on the extreme right-hand side of the southbound roadway (his right-hand side). The evidence further conclusively shows that the truck jack-knifed as a result of the driver, Tolbert, attempting to turn to his left and at the same...