Duncan v. Smith

• Decision Date: 28 February 1964
• Docket Number: No. 3796,3796
• Parties: Walter H. DUNCAN et ux., Appellants, v. Ewell D. SMITH, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 877

376 S.W.2d 877

Walter H. DUNCAN et ux., Appellants, v. Ewell D. SMITH, Jr., et al., Appellees.

No. 3796.

Court of Civil Appeals of Texas, Eastland.

Feb. 28, 1964.

Rehearing Denied March 13, 1964.

Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, Fred Meredith, Terrell, for appellants.

Ralph M. Hall, Rockwall, J. Alex Blakeley and Rae Ann Fichtner, Dallas, for appellees.

Thompson, Coe, Cousins & Irons, Robert W. Porter, Dallas, for intervenors.

COLLINGS, Justice.

Ewell D. Smith, Jr., brought suit against Riley King, individually, d/b/a B. B. King, B. B. King, Inc., Buffalo Booking Agency, Millard Harvey Lee and Irene L. Duncan and husband Walter H. Duncan. Plaintiff sought to recover damages from the defendants for injuries sustained by him in an automobile accident which occurred on October 14, 1957, on a highway about nine miles west of the City of Terrell. Plaintiff alleged that at the time of the accident he was riding as a passenger in a butane gas truck being operated by his brother John Milton Smith, now deceased. He alleged that the accident was the result of negligence on the part of the defendants, individually, and acting in concert with each other; that Irene L. Duncan was the driver of a Chevrolet automobile at the time of the accident and that Millard Harvey Lee was the driver of a bus which can into the Chevrolet automobile being operated by Mrs. Duncan, and then went across the highway at a place where it narrowed at a bridge and hit the butane gas truck.

Suit was also brought by Margaret Geiggs Smith surviving widow of John Milton Smith, deceased, who was the driver of the butane truck and was killed as a result of the accident. Mrs. Smith brought suit against the same defendants in her own behalf and for her minor children. She was joined by John Smith, Sr., and wife, parents of the deceased, John Milton Smith, seeking to recover damages because of the death of their son. The two cases were consolidated.

Trial was before a jury which found Millard Lee, the driver of the bus, guilty of negligence proximately causing the collision, and that Mrs. Duncan was guilty of negligence proximately causing the collision in that (1) she was attempting to pass the bus, (2) she failed to keep a proper lookout, (3) she failed to apply her brakes, (4) she drove her car at a greater rate of speed that a person of ordinary care would have done under the same or similar circumstances and (5) she drove her vehicle to the left of the center of the roadway when within 100 feet of the bridge. Based upon the verdict judgment was rendered against defendants B. B. King, Inc., as owner of the bus and against Walter H. Duncan and wife Irene L. Duncan and in favor of the named plaintiffs and various other plaintiffs on subrogation claims and for property damage. Defendants Walter H. Duncan and wife have appealed.

In appellants' first and second points it is contended that the court erred in refusing to hold there was no evidence, or in the alternative that the evidence was insufficient to support the findings by the jury that Irene L. Duncan was guilty of negligence proximately causing the accident.

An examination of the evidence relative to these points indicates the accident out of which this suit arose involved three vehicles, a bus owned by B. B. King, Inc., driven by Millard Lee, a Chevrolet automobile driven by appellant Mrs. Irene Duncan and a butane truck operated by John M. Smith, deceased, accompanied by his brother, appellee Ewell Smith, Jr. The accident occurred at 3:30 p. m. on October 14, 1957, at a bridge on highway 80 between Dallas and Terrell, Texas where the highway runs in an easterly and westerly direction. The bridge is 27 feet wide accommodating two lanes of traffic, one east bound and one west bound. From the east end of the bridge permanent guard rails extend east 57 feet along the north and south sides of the highway. The distance between the guard rails running east from the bridge gradually increases to the east end of the rails, and the over-all width of the highway immediately east of the guard rails including the two traffic lanes and the paved shoulders was 38.6 feet. The butane truck was travelling in an easterly direction. The King bus and the Duncan car were travelling west along the highway east of the bridge. As they neared the bridge and drove on to it, the bus was travelling partially in the west bound traffic lane and partially on the paved shoulder. Mrs. Duncan was at the time operating her vehicle to the left of and along side the bus and the evidence is conflicting as to whether her vehicle was to the left of the center of the roadway. The evidence is also conflicting as to whether the bus was attempting to pass Mrs. Duncan or she was passing the bus. Ewell Smith, Jr. testified that Mrs. Duncan was passing the bus. All other witnesses testified that the bus was passing her. In any event the bus struck the guard rail on the right side of the highway where it narrowed sharply to join the bridge, and then bounced toward the center of the highway into the right rear of the Duncan vehicle which was knocked into a sidewise position in front of the approaching butane truck, but the position of the Duncan can was somehow corrected so that it avoided a collision with the butane truck. The bus then veered still further left across the highway and struck the butane truck head-on as the truck came on to the west end of the bridge. The truck caught fire and John M Smith was burned to death. Ewell Smith, Jr., sustained serious injuries.

The testimony of Ewell Smith, Jr., constitutes some evidence that Mrs. Duncan was passing the bus on the occasion in question and that such act constituted negligence which proximately caused the accident. The fact that there was evidence to the contrary is not material in determining the question of whether there was any evidence to support the finding complained of. If it is assumed that Mrs. Duncan was attempting to pass the bus then there was also some evidence that she failed to keep a proper lookout, that she drove her car at an excessive rate of speed under the circumstances and that such acts were negligence and proximately caused the accident. Appellants' first point is overruled.

Appellants' second point complaining of the insufficiency of the evidence presents a more difficult question but a careful consideraton of the record as a whole convinces us that it also should be overruled. In determining the question of the sufficiency of the evidence we must consider all of the facts and circumstances in evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. The existence of negligence on the part of Mrs. Duncan proximately causing the accident in our opinion hinges principally upon the question of whether Mrs. Duncan was attempting to pass the bus. Mrs. Duncan and several disinterested witnesses testified that she was not passing the bus but that the driver of the bus was attempting to pass her car. The only evidence to the effect that Mrs. Duncan was passing the bus in from Ewell Smith Jr., a party to this suit and an interested witness. The facts and circumstances of the case, aside from the conflicting testimony, do not show that either version is more probable than the other. Under such circumstances the fact that a witness is interested in the outcome of the suit or is a party thereto is not ground for refusing to give effect to his testimony even though it is contradicted by the testimony of all other witnesses. A question of fact is presented for the fact finding body. 24 Tex.Jur.2d 365, 366. In discussing the status of testimony of a party plaintiff and interested witness, it was held as follows in Haskins v. Henderson, Tex.Civ.App., 2 S.W.2d 864.

'The court had a right to believe his testimony and base the judgment he rendered thereon, notwithstanding it may have been contradicted, as appellant insists it was, by the testimony of all the other witnesses in the case.'

Appellants' 8th, 9th, 10th, 11th and 12th points complain of the action of the court in permitting Dr. Conradt to testify that Ewell Smith is more susceptible to cancer since he received the burns in the accident. Appellants urge that the answers of the doctor clearly show that he was basing his testimony on speculation and possibilities as to what might happen in the future. We cannot agree with this contention and these points are overruled. The doctor's testimony was, in effect, that based upon reasonable medical probability, Ewell Smith because of his burns is more susceptible to skin cancer. The evidence was admissible and was not subject to the objections urged by appellants. St. Louis S. W. Ry. Co. of Texas v. Brown, Tex.Civ.App., 163 S.W. 383, (Error Ref.); Rea v. St. Louis S. W. Ry. Co., Tex.Civ.App., 73 S.W. 555; Missouri, K. & T. Ry. Co. of Texas v. Crum, 35 Tex.Civ.App., 609, 81 S.W. 72, (Writ Ref.).

In appellants' 13th and 14th points it is contended that damages in the sum of $175,000.00 in favor of Ewell D. Smith, Jr., is grossly excessive and that the court erred in not granting a new trial or in the alternative in not granting a remittitur down to $15,000.00. We cannot agree with appellees' contention that appellants failed to include in their motion for new trial a sufficient assignment of error to preserve these points on appeal. The assignment urged the granting of a new trial because the award to Ewell Smith was 'obviously so excessive as to show bias and prejudice on the part of the jury.'

The record indicates that at the time of the accident on October 14, 1957, Ewell Smith was thirty one years of age and had a life expectancy of 36.88 years. He was a part time farmer and owned a small farm. He had also been a part time carpenter and house painter and according to his statement had done 'every thing to make a living.' He employed help to do most of the farm work. At the time of the accident he was...