Ditta v. Pogue

• Decision Date: 29 May 1952
• Docket Number: No. 12414,12414
• Citation: 249 S.W.2d 938
• Parties: DITTA v. POGUE.
• Court: Texas Court of Appeals

Page 938

249 S.W.2d 938

DITTA v. POGUE.

No. 12414.

Court of Civil Appeals of Texas, Galveston.

May 29, 1952.

Rehearing Denied June 19, 1952.

Geo. Red, Henry P. Giessel, of Houston, for appellant.

Chilton Bryan, Ralph K. Miller, of Houston, for appellee.

GRAVES, Justice.

This appeal is from a $244.21 judgment of the County Court at Law of Harris County, Hon. W. Sears McGee, judge presiding, entered, in response to a jury's verdict on special issues submitted, in favor of the appellee and against the appellant, as for damage done to the automobile of the appellee by the negligence of the appellant in causing a collision with it by his own car.

Appellant challenges the judgment so adverse to him below upon some five Points of Error, in material substance to the effect that the court erred in these respects:

(1) in submitting its Special Issues Nos. 5 and 6 over appellant's objections thereto;

(2) in refusing to submit appellant's requested Special Issues on the doctrine of discovered peril (3) in excluding from the evidence two of appellant's former pleadings in the cause, i. e. his original and first supplemental petitions therein;

(4) in overruling appellant's Special Exception to and his motions complaining of the allegation in the appellee's trial petition referring to the appellant as 'Joe Ditta alias Frank Ditta';

(5) in having overruled appellant's motion for a continuance.

None of these presentments, it is determined, point out reversible error.

Special Issues Nos. 5 and 6 were these:

'Special Issue No. 5

'Do you find from a preponderance of the evidence that Joe Ditta failed to yield the right of way when driving his automobile from the private road or driveway of the Minimax Parking lot onto U. S. Highway No. 59 while the vehicle being operated by William L. Pogue was approaching on U. S. Highway No. 59?

'Answer 'We do' or 'We do not.'

'The term 'right of way' as used in this charge means the right of a vehicle to proceed uninterruptedly, in a lawful manner, in the direction in which it is moving, in preference to another vehicle approaching from a different direction.

'If you have answered Special Issue No. 5 'We do' and only in that event, then answer:

'Special Issue No. 6

'Do you find from a preponderance of the evidence that such failure to yield the right of way, if you have so found, was a proximate cause of the collision in question?

'Answer 'We do' or 'We do not."

This reply of the appellee to appellant's Point No. 1, as made by the appellee, is adopted as a complete answer thereto:

'* * * there was no error in the trial court's submission of Special Issues Nos. 5 and 6, because the first of said issues is a paraphrasing of Sec. 74 of Art. 6701-d of the R.C.S. of the State of Texas, 1925, (Uniform Act Regulating Traffic on Highways); that said issue did not assume any fact or group of facts; that said issue is amply supported not only by a preponderance of the evidence, but by uncontradicted evidence; and was, therefore, properly submitted, along with its companion issue of proximate cause.'

These, among many other, authorities that might he cited, support the conclusions stated, to-wit: Vineyard v. Harvey, Tex.Civ.App., 231 S.W.2d 921 (error dism.); Malone v. City of Plainview, Tex.Civ.App., 127 S.W.2d 201; 41 Tex.Jur. 1137; City of Winters v. Bethune, Tex.Civ.App., 111 S.W.2d 797, 800, dism.; Gulf, C. & S. F. Ry. Co. v. Jones, Tex.Civ.App., 221 S.W.2d 1010 (writ refused, n.r.e.); Speer's Special Issue, Sec. 163, 429, 456; National Security Life & Casualty Co. v. Benham, Tex.Civ.App., 233 S.W.2d 334 (writ refused, n.r.e.); Bennett v. McKrell, 135 Tex. 557, 144 S.W.2d 242; Galveston, H. & S. A. Ry. Co. v. Henry, Tex.Civ.App., 252 S.W. 210; Art. 6701d, Vernon's Ann.Civ.St.; Mundy v. Pirie Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587.

Appellant's criticism that Special Issue No. 5 assumes as facts both that appellee was approaching on U. S. Highway 59 and that appellant drove his car from the Minimax Parking Lot onto that highway, and, further, it indicated the court's belief of the appellee's testimony in that respect, as well as that it submitted two issues, and was, in substance, a general charge, upon the whole, are all thought to be unsubstantiated contentions.

Indeed, appellant himself testified that he was going south, along the right lane of that highway, just prior to and at the time of the collision, that he never saw appellee's car, nor did he know the latter was approaching such highway, prior to the actual collision; in his testimony he was joined by the only other witness in his behalf, so that, the undisputed evidence is to the effect that appellee was so approaching Highway 59, which situation brings this cause directly within the Vineyard v. Harvey and Winters v. Bethune, and others of the authorities, cited supra. Neither, as this Court reads it, is there any controversy in the testimony as to whether or not appellant drove his car from the private road out of the Minimax Parking Lot onto the highway, just prior to the collision.

The other specified objections to the charge are likewise thought not to be well taken.

In the next place, it seems clear to this Court that there was no error in the trial court's refusal to submit appellant's requested Special Issues, on the doctrine of discovered peril, as applicable to this cause, as so made out by the pleadings and testimony. Whatever may be said as to the sufficiency of the pleadings upon this phase, it is clear to this Court that the evidence did not make of it a controversy involving the discovered-peril doctrine. The appellee, likewise, in his brief, so contends, and thus specifies the respects in which he asserts there was no evidence even offered to show these indispensable elements of fact, in order that such doctrine might be applicable thereto, to-wit:

'1) That appellant or the vehicle he was driving were in a position of peril;

'2) That appellee ever discovered appellant in a perilous position, if he was;

'3) That appellee ever realized that appellant was in a position of peril, if he was;

'4) That any such discovery and realization of appellant's perilous position by appellee, if any there was, was made at a time and distance sufficient so that, in the exercise of ordinary care, and with all the means at his command...