Dewhurst v. South Tex. Rendering Co.

• Decision Date: 31 May 1950
• Docket Number: No. 12100,12100
• Citation: 232 S.W.2d 135
• Parties: DEWHURST et al. v. SOUTH TEXAS RENDERING CO.
• Court: Texas Court of Appeals

Page 135

232 S.W.2d 135

DEWHURST et al. v. SOUTH TEXAS RENDERING CO.

No. 12100.

Court of Civil Appeals of Texas, San Antonio.

May 31, 1950.

Rehearing Denied July 19, 1950.

Elledge, Elledge, Urban & Elledge, Earl Cox, all of Houston, for appellants.

Guittard & Henderson, Victoria, Kemp, Lewright, Dyer & Sorrell, Warren & Groce, all of Corpus Christi, for appellee.

NORVELL, Justice.

David H. Dewhurst, Jr., was killed in a road intersection collision between a station wagon he was driving and a truck owned by the South Texas Rendering Company. His widow, Martha Harris Dewhurst, individually and as guardian of the minors, David H. Dewhurst III and Eugene Harris Dewhurst, brought suit against the company and Texas Employers' Insurance Association intervened therein. Dewhurst was an employee of the W. J. Harris Contracting Company and met his death while working in the course of his employment with said company. Texas Employers' Insurance Association was the workmen's compensation insurance carrier and prayed that it be subrogated to the rights of plaintiffs, in so far as amounts paid out and to be paid out by it as compensation are concerned. Judgment was rendered against plaintiffs and intervener upon jury findings that Dewhurst was guilty of contributory negligence.

Mrs. Dewhurst and her coappellants contend that there is no evidence supporting these findings and that the trial court erred in overruling their motion to disregard the jury's answers to Special Issues Nos. 24 to 27, inclusive, whereby the jury found that Dewhurst was travelling at an excessive rate of speed 'just before and at the time of the collision'; that he 'failed to keep a proper lookout for vehicles approaching and in the intersection where the collision occurred,' and that such act and omission were proximate causes of the collision.

The crossing where the collision occurred is located outside the corporate limits but near the City of Victoria, Texas. About 5 p. m. on November 5, 1948, appellee's servant, Matias Munoz, acting within the scope of his employment, was driving a truck owned by appellee in a westerly direction along a gravel road known locally as the Lone Tree Road. Dewhurst was travelling south along a dirt road which intersects the east-west Lone Tree Road at right angles. The two vehicles collided at this intersection. Munoz was the only eyewitness to the collision and while he was examined and cross-examined at length upon the trial his testimony is capable of brief summarization.

According to Munoz, he first observed the station wagon approaching the intersection when it was about 150 feet therefrom. He estimated its speed at 40 to 50 miles per hour. At this time, Munoz was closer to the intersection than was the station wagon, which was approaching from Munoz's right. However, he testified that both vehicles slowed down and reached the immediate approach to the intersection at about the same time, and the jury found accordingly that the vehicles entered the intersection at approximately the same time.

In his deposition, taken prior to the trial, Munoz testified that the Dewhurst station wagon came to a complete stop prior to entering the intersection. Upon the trial, however, he stated that the last time he saw the station wagon prior to the collision it was still rolling slowly toward the intersection. Although Munoz had stated that he knew that the vehicle approaching from the right had the right-of-way, he testified that 'when I see him stop (slowing down), I figure he will stop and let me get by. That is what I was going by. When he got to the gravel road, I took a look to my left (the station wagon was approaching from the right) to see if anybody was coming and when I looked right again and heard the noise and saw him going in front of me.'

The foregoing is the substance of Munoz's testimony which was reiterated by him over and over again.

Dorien Cornelius, a member of the State Highway Patrol, testified that he made an investigation of the collision, and the following statements are taken largely from his uncontradicted testimony and from photographs introduced in evidence.

At the time the impact occurred, the station wagon had almost passed in front of the truck. The front end of the truck struck the left rear part of the station wagon, causing it to turn completely around and come to rest thirty-five to forty feet distant from the point of collision and across a borrow pit three or four feet deep. The truck swerved off to the left of the gravel road, crossed a borrow pit, and finally stopped in a filed about 250 feet from the point of collision. Cornelius marked the point of collision from the displaced gravel on the road. He was of the opinion that the station wagon had been struck a glancing blow which, together with the loose gravel upon the road, caused it to spin around rather than turn over.

Munoz's testimony supports the jury's findings that the two vehicles entered the intersection at approximately the same time; that Munoz failed to yield the right-of-way, as required by the provisions of Section 71(b) of the Uniform Act Regulating Traffic on Highways, Article 6701d, § 71(b), Vernon's Ann.Civ.Stats., and that this failure was a proximate cause of the collision. (The jury found that Munoz was negligent in numerous other particulars proximately causing the collision, but it is not deemed necessary to mention them here.) Judgment, therefore, should go against appellee unless the plea of contributory negligence is supported by the evidence.

After a careful examination of the statement of facts, we have come to the conclusion that there in no evidence supporting the jury's findings that Dewhurst was travelling at an excessive speed at the time of the collision or that he failed to keep a proper lookout. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Appellants' motion for judgment should have been sustained.

While the testimony of Munoz was not necessarily binding upon the jury, disbelief his statement that the station wagon was moving slowly into the intersection is not evidence that the driver of the station wagon was travelling at an excessive rate of speed without maintaining a proper lookout. Testimony of a witness that an automobile was travelling at the rate of ten miles per hour at a certain time can not in itself be considered as testimony that the vehicle was travelling at the rate of sixty miles per hour. There must be something more than mere disbelief in the tenmile per hour testimony to support a sixtymile per hour finding. We do not agree with appellee's argument that the jury 'could have disregarded that portion of Munoz's testimony relating to the deceased slowing his automobile down as he was nearing the intersection and could have believed his testimony with reference to the rate of speed of forty or fifty miles an hour and used that as a factor in arriving at...