Day v. McFarland

• Decision Date: 09 December 1971
• Docket Number: No. 575,575
• Citation: 474 S.W.2d 946
• Parties: Robert G. DAY, Sr., Appellant, v. Weldon McFARLAND et al., Appellees.
• Court: Texas Court of Appeals

Page 946

474 S.W.2d 946

Robert G. DAY, Sr., Appellant, v. Weldon McFARLAND et al., Appellees.

No. 575.

Court of Civil Appeals of Texas Tyler.

Dec. 9, 1971.

Rehearing Denied Jan. 6, 1972.

Jackson, Walker, Winstead, Cantwell & Miller, Ralph E. Hartman, Jack Pew, Jr., Dallas, for appellant.

Spruiell, Lowry, Potter, Lasater & Guinn, Wilbert Lasater, Tyler, for appellees.

MOORE, Justice.

This is a wrongful death action arising out of an intersection collision. Appellees, Weldon McFarland, as community administrator of the estate of Kathryn Anne McFarland and as next friend of his two minor children, brought this suit against appellant, Robert G. Day, Jr., and his minor son, Robert G. Day, Jr., for damages arising out of an automobile collision between Robert G. Day, Jr. and Kathryn Anne McFarland, the wife and mother of appellees respectively. The collision occurred at the intersection of Loop 323 and Paluxy Drive in the City of Tyler, Smith County, Texas.

Trial was before a jury. In response to the special issues, the jury found Robert G. Day, Jr. guilty of negligence proximately causing the collision in (1) driving his automobile in excess of the legal speed limit of 45 m.p.h., and (2) failing to apply his brakes. Numerous special issues were submitted to the jury inquiring as to the contributory negligence of the deceased, Kathryn Anne McFarland. The material contributory negligence issues, as numbered in the court's charge, are as follows: (7) whether the deceased, Kathryn Anne McFarland, failed to keep a proper lookout, (10) whether she was guilty of negligence in driving her automobile into the path of the Day vehicle, (15) whether she failed to yield the right-of-way to to Day vehicle, and (18) whether she failed to make a proper application of her brakes. The jury answered each of the foregoing contributory negligence issues in the negative.

The trial court rendered judgment on the verdict awarding appellees damages in the amount of $154,798.50. After his motion was overruled, appellant, Robert G. Day, Sr., duly perfected this appeal. We affirm the judgment of the trial court.

Appellant does not challenge the findings establishing negligence on the part of Robert G. Day. Jr.

By the first four points of error appellant urges that the trial court erred in refusing to grant his motion for new trial on the ground that the jury's negative findings to Special Issues Nos. 7, 10, 15 and 18 exonerating the deceased from any act of contributory negligence, were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. In this connection appellant states in his brief that: '* * * we will not ask the Court * * * to find contributory negligence 'as a matter of law.' We do ask, however, that this Court exercise its authority to review the factual sufficiency of the evidence to support these findings.' Under these points we are required to review all evidence in the record.

The collision in question occurred at approximately 11:50 a.m. on May 26, 1969, at the intersection of Loop 323 and Paluxy Drive. Paluxy Drive runs north and south and Loop 323 runs east and west. There are two east bound lanes of traffic and two west bound lanes of traffic on Loop 323. There is also a parking lane on each side of Loop 323 which is 15 feet in width, lying next to the curb. At the point where Paluxy Drive intersects the loop, there is a stop sign on Paluxy Drive approximately 15 feet back from the curb. There was also a white stop line painted on the street about even with the curb line along the loop. The record shows that Loop 323 is heavily traveled. The record further shows that the pavement was dry and the visibility was not restricted on account of the weather.

Robert G. Day, Jr., who was 16 years of age at the time of the accident, was a student at Robert E. Lee High School. The high school was located on Loop 323 approximately 2 1/2 miles west of Paluxy Drive. Shortly before the collision, Robert and two fellow students, Ricky Kinsey and Tommy Sukiennik, left the school in a 1969 Oldsmobile 442 owned by Robert G. Day, Sr. After leaving the school they traveled east on Loop 323 on their way to a bowling alley situated on the loop east of Paluxy Drive, to have lunch.

The speed limit on the loop, at this point, was 45 m.p.h. Appellant admits that the evidence would justify a finding that, before reaching Paluxy Drive, Robert attained a speed of 70 m.p.h. Other evidence in the record shows that he may have been traveling at the rate of as much as 100 m.p.h. Tommy and Ricky, his two passengers, testified, however, that Robert started to slow down as they approached Paluxy Drive because there is usually a policeman at the Dairy Queen which is just east of Paluxy. Immediately before the collision Robert was traveling in the inside lane next to the parking lane.

The record shows that immediately before the collision Mrs. McFarland was traveling north on Paluxy. As she approached the intersection, she stopped at the stop sign or at most slowed her automobile to such a degree that it was practically stopped. The evidence shows that the view of a motorist driving north on Paluxy and approaching the loop is somewhat obstructed on the left by trees and bushes until the motorist reaches a point near the stop sign. At this point the view becomes better as one proceeds toward the stop line. From the stop line a person could see approximately two-tenths of a mile to the west in the direction of the Day automobile. The only obstruction was several telephone poles situated near the south side of the loop. Tommy Sukiennik, a passenger in the Day automobile, testified that when the Day automobile was about 100 yards from the intersection, he saw Mrs. McFarland come into the intersection from Paluxy and gradually roll into the lane occupied by the Day car. He testified that the first time he saw her, she was already past the stop line, past the parking lane, and approximately 3 feet in the right-hand driving lane in the direction in which they were going. He further testified that immediately prior to the impact Mrs. McFarland appeared to have her head turned to the right, away from the Day automobile. This testimony constitutes the only direct evidence as to whether deceased maintained a proper lookout, since neither Robert Day, Jr. nor Ricky Kinsey, the other passenger, were able to remember anything about how the accident occurred. He further testified that Day moved to his left in an apparent effort to go in front of her, but the collision occurred at about the center stripe which divides the two east bound lanes on the south side of the loop . The point of impact was the middle of Mrs. McFarland's automobile . According to his testimony, the McFarland automobile appeared to be making a slight turn to the left. The impact propelled the McFarland automobile approximately 80 feet east of the intersection and Mrs. McFarland was apparently killed instantly.

Tommy Crouch, also a student at the high school, testified that shortly before the collision he was proceeding east on the loop and that Robert passed him immediately before the collision. He testified that he did not see the McFarland automobile at the stop sign; that the first time he saw it it was rolling past the stop sign at a speed of approximately 4 m.p.h.; and that Mrs. McFarland appeared to have made a normal acceleration of her speed to about 20 or 25 m.p.h. at the time of the collision. According to his testimony, the Day vehicle was approximately 125 feet from the intersection when Mrs. McFarland attempted to cross.

Ralph Byrd, a Highway Patrolman, and a witness for appellees, testified that sometime after the collision he made some tests at the scene of the collision for the purpose of determining how long it would take a driver, driving the type of automobile that the deceased was driving, under the same circumstances, to drive from stopped position at the stop sign to the point of the impact. He testified that the distance between these two points was 44 feet. He testified that after stopping at the stop sign and without looking in either direction and by proceeding at an ordinary rate of speed to the point of impact, required a time of 5.4 seconds and that the time required between the two points after making a quick glance to the left and right was 7.8 seconds. He testified that in making the experiment he stopped at the stop sign on Paluxy and looking to his left to the west, the farthest distance a person could see was between 643 feet and 853 feet, and that somewhere between these distances the loop curved so that an automobile would not be visible to one stopped at the stop sign. According to his calculations, when and if Mrs. McFarland stopped at the stop sign and glanced quickly to the left and to the right before entering the intersection, the Day vehicle would have been at least 803 feet away from the intersection if traveling at the rate of 70 m.p.h. and would have been 920 feet away if traveling at 80 m.p.h. Accordingly, he calculated that if the Day automobile was traveling at the rate of 70 m.p.h., it must have traveled a distance of 803 feet while Mrs. McFarland was traveling 44 feet to the place of impact, and if traveling at the rate of 80 m.p.h., the Day automobile must have traveled 920 feet while Mrs. McFarland was traveling 44 feet.

In view of appellant's points challenging the factual sufficiency of the evidence, this court, in the exercise of its peculiar powers under the Constitution and the Texas Rules of Civil Procedure, Nos. 451, 453, and 455, has the duty to consider and weigh all of the evidence in the case and to set aside the verdict and remand the case for a new trial, if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong, regardless of whether the record contains some evidence of probative force in...