Davis v. Shafer, 2727.

• Decision Date: 17 June 1949
• Docket Number: No. 2727.,2727.
• Parties: DAVIS v. SHAFER et al.
• Court: Texas Court of Appeals

Page 145

222 S.W.2d 145

DAVIS v. SHAFER et al.

No. 2727.

Court of Civil Appeals of Texas. Eastland.

June 17, 1949.

Rehearing Denied July 8, 1949.

Appeal from District Court, Scurry County; A. S. Mauzey, Judge.

Action by Weldon Shafer, and others, against Dan Davis for personal injuries and for damages sustained in a collision between an automobile and a truck owned by defendant. From the judgment, defendant appeals.

Judgment affirmed.

Strasburger, Price, Holland, Kelton & Miller, Dallas, for appellant.

Ben F. Thorpe, Snyder, John E. Sentell, Snyder, for appellees.

GRISSOM, Chief Justice.

Weldon Shafer, A. C. Shafer and Billie Jim Shafer, the latter a minor acting by his next friend, sued Dan Davis for damages resulting from injuries suffered by Weldon and Billie Jim Shafer, and damage to Weldon Shafer's automobile, in a collision between an automobile driven by Weldon Shafer and a gasoline tank truck belonging to Davis, which was being driven by Davis' agent while acting in the course of his employment. Billie Jim Shafer was the fifteen year old brother of Weldon Shafer, age twenty-two, who owned and was driving the Ford automobile in which the Shafers were riding when it collided with the Davis truck. The collision occurred about 150 feet inside the city limits of Snyder. Billie Jim Shafer testified that the brothers bought a sack of candy in Snyder and it was on the front seat between them; that he was not watching the operation of the automobile nor the road; that he had reached over to get a piece of candy out of a sack and looked up just in time to get a glance at the Davis truck as it suddenly emerged from behind another truck and "jack-knifed" across the road in front of the Shafer car, completely covering the paved portion of the highway, except a small portion on the south edge, Shafer's left, which would permit one side of a car to stay on the pavement as it passed around the south end of the Davis truck. The accident happened about dark on a cloudy day, while mist was falling.

Weldon Shafer's version of the collision was that he was driving west at 25 miles per hour; that near the city limits of Snyder he could see a truck coming east as they proceeded west; that when the Shafers were within about 65 feet of a large cattle truck the Davis gasoline truck suddenly emerged from behind the cattle truck, on its left hand side of the highway, that is, the north side, directly in front of the Shafer car; that the Davis truck stopped on the highway, completely closing the passage on the hard surfaced portion of the highway, except about six feet on the south side; that Weldon swerved his Ford to his right, that is, to the north, and collided with the right hand side of the Davis truck, near its front door; that Weldon was knocked unconscious and Billie Jim had his jaw broken and suffered other serious injuries.

The version of the collision offered by the driver of the Davis truck was that he had been following the cattle truck, which was about 42 feet long, for seven or eight miles and before he got to the city limits, started to go around it; that he pulled to his left, that is, to the north, threw the truck into a gear that gave it more speed, had straightened out and pulled along the side of and even with the cattle truck he was passing when the Shafer automobile, traveling 40 to 50 miles an hour, appeared directly in his path. Whereupon, he says, he cut off the power and pulled to his left, that is, to the north, across the highway, trying to avoid colliding with Weldon Shafer's car.

There is no evidence that Billie Jim had any business in the automobile. He went along with his brother merely for the ride. If there is evidence that raises an issue as to a duty on the part of Billie Jim, as a passenger, to keep a lookout, it is the testimony of the driver of the Davis truck that the Shafer car was traveling between 40 and 50 miles an hour under the circumstances mentioned.

The case was submitted to a jury on special issues which were answered favorably to the Shafers. Judgment was rendered for the Shafers and Davis has appealed.

Issues as to whether the driver of the Davis transport truck failed to keep a proper lookout when he attempted to pass the other truck and as to whether Weldon Shafer failed to keep a proper lookout were submitted. In the preliminary portion of the court's charge, proper lookout was defined as follows:

"By the term `proper lookout' as that term is used throughout this charge, is meant such a lookout as a person of ordinary prudence would exercise under the same or similar circumstances."

Issue 21, the answer thereto and the definition given in connection therewith were as follows:

"Do you find from a preponderance of the evidence that on the occasion in question that Billie Jim Shafer failed to keep a proper lookout? Answer `He kept a proper lookout' or `He did not keep a proper lookout.'

"Answer: He kept a proper lookout.

"In answering the foregoing issue you will be guided by the following definition: By `proper lookout', for a person riding as a passenger or guest in a car, is that degree of care that the ordinary prudent passenger riding in a car would exercise under the same or similar conditions and circumstances for the protection of his own safety."

Defendant objected to said definition, as follows:

"Defendant objects to the definition of `proper lookout' given in connection with Special Issue No. 21 for each and all of the following reasons:

"a. Because same places a greater burden upon the Defendant than is placed there by law in that same unduly and unnecessarily draws the attention of the jury to the fact that Billie Jim Shafer was a passenger or guest in the automobile of Weldon Shafer when such a fact is only one of the circumstances to be considered by the jury in determining whether or not Billie Jim Shafer kept that kind and character of lookout that would have been kept by a person of ordinary prudence under the same or similar circumstances.

"b. Because the definition of proper lookout in connection with a passenger or a guest in an automobile should be the same as the definition of proper lookout for any other person. The fact of being a passenger or guest is only a circumstance from which the jury would determine the kind and character of lookout that should have been kept."

Appellant's first point is:

"The error of the trial court in improperly defining `proper lookout' in connection with Special Issue No. 21, which said definition unduly and unnecessarily drew the attention of the jury to the fact that Billie Jim Shafer was a passenger or guest in the automobile of Weldon Shafer."

Proof that one was a passenger in an automobile at the time of a collision did not, of itself, establish his duty to keep a lookout. Harper v. Texas & P. Ry. Co., Tex.Civ.App., 146 S.W.2d 426, writ ref., and Safeway Stores, Inc., v. Webb et ux., Tex.Civ.App., 164 S.W.2d 868, RWM. There must be proof of circumstances indicating a need for the passenger to be on the alert in order to show his duty to keep a lookout. Otherwise, he has the right to rely upon the diligence of the driver in keeping a lookout. The Schuhmacher Co. v. Shooter, 132 Tex. 560, 564, 124 S.W.2d 857; 5 Tex.Jur. 448, 449; Harrison v. Southwest Coaches, Tex.Civ.App., 207 S.W. 2d 159, 162, RNRE.

"Save in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout or to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a book without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent." Vol. 2 Restatement of the Law of Torts pp. 1282, 1283, Sec. 495.

The foregoing was quoted by Judge Funderburk in International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760, 764, writ ref., and was quoted, with express approval of the Supreme Court, by Judge Smedley in Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526, 530.

Billie Jim Shafer may have been entitled to an instruction as to the circumstances that create a duty on the part of a passenger to keep a lookout in order that the jury might properly pass on such issues. See Texas Rules Civil Procedure, rule 277. If so, such an instruction would have been more favorable to Billie Jim Shafer than the definition objected to.

Our Supreme Court, in an opinion by Judge Hickman, in Garcia v. Moncada, 127 Tex. 453, 456, 94 S.W.2d 123, 124, said:

"The question of whether the evidence raised an issue of fact as to the contributory negligence of Garcia in failing to take charge of the operation and bring the car to a stop must be viewed in the light of the standard of conduct required of a guest having no right of control over the car or its operation. A person riding in an automobile as a guest of another is not chargeable with the driver's negligence, but he does owe the duty of ordinary care to avoid injury. As stated in Clarke v. Connecticut Co., 83 Conn. 219, 76 A. 523, 525, `The law fixes no different standard of duty for him (a passenger in an automobile) than for the driver. Each is bound to use reasonable care.' But, while the standard is the same, the conduct which that standard requires may be, and generally is, very different. Conduct which would constitute ordinary care by a guest may fall far short of ordinary care by a driver. Their duties are different. The facts in evidence clearly raise the issue that Ynguanzo, the host, was negligent in not bringing his car to a stop, but our question is whether they raise such an issue as to Garcia, the guest. Generally, the question of contributory negligence of a guest, like that of the contributory negligence of any other plaintiff...