Davis v. Younger Bros., Inc., 12570

• Decision Date: 01 July 1953
• Docket Number: No. 12570,12570
• Citation: 260 S.W.2d 637
• Parties: DAVIS et al. v. YOUNGER BROS., Inc., et al.
• Court: Texas Court of Appeals

Page 637

260 S.W.2d 637

DAVIS et al. v. YOUNGER BROS., Inc., et al.

No. 12570.

Court of Civil Appeals of Texas, San Antonio.

July 1, 1953.

Rehearing Denied Sept. 2, 1953.

Oliver & Peace, Roscoe Johnson, Moursund, Ball, Moursund & Bergstrom, W. B. (Jack) Ball, Eskridge, Groce & Hebdon, San Antonio, for appellants.

Carl Wright Johnson, San Antonio, Edward P. Fahey, San Antonio, Simpson, Clayton & Fullingim, Amarillo, Scott, Wilson & Cureton, Waco, for appellees.

POPE, Justice.

This is an appeal from a judgment non obstante veredicto in favor of the defendant Younger Brothers, Inc., in a death suit involving a three-way truck collision on a bridge. A panel truck, owned by Standard Cigarette Service, Inc., was proceeding in an easterly direction between Seguin and Luling at about 8:00 a. m. on a clear, dry October morning. It approached a narrow bridge that was twenty feet wide, and, according to the jury findings, carefully stopped at the west approach to the bridge and awaited a truck that was driving onto the bridge from the east. The Cigarette truck was in no way at fault in the manner in which it was driven. The oncoming truck that was proceeding across the bridge in a westerly direction belonged to defendant Younger Brothers, Inc. It was a heavily loaded truck and trailer, and weighed about 46,500 pounds.

The third truck belonged to Ace Welding & Boiler Works. It was a ton and a helf flat-bed truck and contained welding equipment. It was headed east, following the Cigarette truck, and was also facing the oncoming Younger Brothers truck. When the Cigarette truck stopped at the west end of the bridge to wait for the Younger Brothers truck to cross the bridge, the welding Works truck collided with the left rear of the Cigarette truck and then proceeded out of its right lane into the left lane onto the bridge directly in front of the approaching Younger Brothers truck. Charles Walker Davis, an employee of the Ace Welding & Boiler Works, was a passenger in the Welding Works truck and was killed in the head-on collision. His widow, children and mother commenced this suit. Traders and General Insurance Company intervened on its subrogation claim.

The jury excused the Cigarette truck of all negligence. The driver of the Welding Works truck was found negligent in six different particulars, but those acts of negligence are not imputable to the passenger, Davis. The jury found that the Younger Brothers truck was driven at an excessive rate of speed but that the speed was not a proximate cause of the collision. But the jury also found that the Younger Brothers truck was driven in excess of forty-five miles per hour, which is the statutory limit for trucks of that weight, and that such driving was a proximate cause of the collision. The jury, having found that Younger Brothers truck was negligently driven by reason of speed and that the Welding Works truck was negligently driven by reason of several findings, then found that the concurring acts of negligence by the drivers of the two trucks were the sole proximate cause of the collision.

The trial court disregarded the above jury findings that Younger Brothers truck was driven in excess of forth-five miles per hour, which proximately caused the collision, and denied recovery to the plaintiffs; and judgment was rendered in favor of Younger Brothers, Inc., on its cross-action against Ace Welding & Boiler Works for $7,800 for damages to its truck and cargo. From this statement of the case it becomes apparent that the only fault chargeable to Younger Brothers truck is the speed at which it was driven. It is charged and found by the jury that the truck was driven in excess of forth-five miles an hour, and that such driving was a proximate cause of the collision. It the jury findings with reference to speed cannot stand, the trial court correctly rendered judgment notwithstanding the findings.

Appellee Younger Brothers, Inc., seeks to uphold the judgment which disregarded the findings for the reason that the pleadings did not raise an issue about statutory speed which the jury found against it. It further urges that there was no evidence to support the finding that its truck had exceeded the statutory speed limit, and also that speed, under the facts of this case, could not have been a proximate cause of the accident.

We consider the pleadings by the Davis family as adequate to embrace an issue on statutory negligence based on speed, but we consider discussion of that point unnecessary and immaterial to a disposition of the case. We are further of the opinion that there is evidence in the record which supports the jury findings that the Younger Brothers truck was driven in excess of forty-five miles per hour. The driver denied he exceeded that limit and Younger Brothers, Inc., insists that the trial court erred in admitting the testimony of two witnesses who observed the speed of Younger Brothers truck shortly before the accident at a point about one and one-half miles from the scene of the accident. They estimated the truck's speed at between fifty-five and sixty-five miles per hour. Younger Brothers, Inc., reasons that by ignoring the testimony of those two witnesses, the jury finding as to speed loses support in the evidence, and for that reason the judgment non obstante veredicto should stand. The physical evidence on and about the paved highway was examined and interpreted by a State Highway Patrolman and adequately supports the jury finding as to speed, independent of the testimony of the two witnesses. Stroud v. Smith, Tex.Civ.App., 119 S.W.2d 894. But we are of the opinion that their testimony was properly admitted and that it was not too remote, either as to time or distance, from the scene of the accident. The driver of the Younger Brothers truck stated that he continued along the highway at the same speed, and those two witnesses...