Dudley v. Whatley
Decision Date | 03 March 1966 |
Docket Number | No. 14676,14676 |
Citation | 400 S.W.2d 773 |
Court | Texas Court of Appeals |
Parties | Ronnie DUDLEY et al., Appellants, v. Gene Anthony WHATLEY et al., Appellees. . Houston |
Max H. Jennings, Clawson, Jennings & Clawson, R. Philip Schulze, Houston, for appellants.
James F. Bobbitt, Bobbitt & Kraft, Houston, Thad W. Davis, Freeport, Raymond L. McDermott and Mabel Grey Howell, Houston, for appellees.
This is a suit to recover damages by reason of personal injuries sustained in an automobile accident. The principal points to be discussed concern claimed errors on the part of the trial court (1) in refusing requested special issues as to proper look-out on the part of appellee Whatley, who was a passenger in his own automobile; and (2) in wording certain special issues submitted in such manner as to constitute a comment on the weight of the evidence.
Prior to the collision from which this suit arose, appellee Fregia was driving appellee Whatley's new automobile on Highway 288 from Freeport toward Angleton. Whatley was riding in the front seat and Thompson in the back seat. The highway is a four-lane concrete highway with asphalt shoulders divided by an esplanade. At the point where County Road 220 intersects the highway from the west, there is a break in the esplanade through which vehicles may enter the northbound lanes of the highway.
On Sunday, July 9, 1962, as appellees were south of and nearing this intersection at a time between 7:00 and 7:40 p.m., appellant Ronnie Dudley, according to his testimony, approached this intersection on the county road and stopped. He checked the traffic, saw the Whatley car 650 to 700 feet south of the intersection, and then drove across the southbound lanes of the highway. He then crossed the break in the esplanade, looked south and saw the Whatley car 400 to 500 feet away, and turned north into the Inside northbound lane. After he had proceeded about 200 to 250 feet without again looking at the Whatley car, he was struck from the rear. There is testimony that the force of the collision was such that Dudley struck the steering wheel; his glasses were thrown onto the ledge in the back of his car; the locked trunk on his automobile opened and the bolted spare tire therein was torn loose and was found in a field on the western side of the highway; the automobile was badly damaged across the rear, especially on the left; the frame was bent down over the rear wheels and was buckled.
Appellees testified that they were proceeding in the outside lane of the highway at a speed of 55 to 60 miles per hour as the car approached the intersection. Appellees and Thompson testified that they saw Dudley as he entered the intersection. He was driving 10 to 15 miles per hour and turned into the Outside lane when they were 150 to 200 feet south of the intersection in that same lane. They testified that Fregia then turned into the inside lane to pass Dudley, and as they were about to pass Dudley turned left into the inside lane in front of them.
There was a difference of opinion among the witnesses as to the length of the skid marks made by the Whatley car, and the exact point of collision. There was agreement that the collision occurred more than 50 feet north of the intersection in the inside lane and that the Whatley car laid down more than 95 feet of heavy skid marks, beginning about the middle of the intersection, all in the inside lane.
Based on jury findings of negligence on the part of Dudley and no contributory negligence, the court entered judgment in favor of Whatley for his damages. There was a stipulation that all negligent acts on the part of the driver, Fregia, would be imputed to the owner, Whatley.
Appellants requested the trial court to submit Special Issue 'A' worded as follows:
'Do you find from a preponderance of the evidence that just before and at the time of the accident in question Gene Whatley failed to keep such a lookout for vehicles on the highway ahead of his vehicle as would have been kept by a person of ordinary prudence, in the exercise of ordinary care, under the same or similar circumstances?' circumstances?'
Ordinarily a passenger, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. He may rely on the driver to keep watch unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless. In addition if the passenger knows that a particular point there will be a peculiar danger, which he has no reason to believe that the driver, if unaided, will perceive, he may be guilty of negligence, if he does not keep himself in a position to call the danger to the attention of the driver. Edmiston v. Texas & N.O.R. Co., Com.App.1940, 135 Tex. 67, 138 S.W.2d 526, opinion adopted; Schumacher Co. v. Shooter, Com.App.1939, 132 Tex. 560, 124 S.W.2d 857, opinion adopted.
There was no such exceptional circumstance shown as would raise a duty on the part of Whatley to keep a lookout. There is no evidence that Fregia was not a competent driver, or was handicapped in any manner. The car was being driven on a wide, straight highway on a clear, dry day. No other cars were in the vicinity. While an inference of excessive speed might have been drawn from the evidence, and there was opinion testimony that the Whatley car was being driven from 60 to 75 miles per hour, Whatley testified to a speed of 50 to 55 miles per hour. While a jury was not required to accept this testimony, there was no other testimony from which it could be determined that Whatley knew the speed of the automobile.
In the Edmiston case, supra, the court approved as a correct declaration of the law a quotation from the Restatement of the Law of Torts (Vol. 2, pp. 1282, 1283, section 495) in which this statement appears:
An inference of improper lookout on the...
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