East Texas Motor Freight Lines v. Loftis

• Decision Date: 17 March 1949
• Docket Number: No. 6424.,6424.
• Citation: 219 S.W.2d 133
• Parties: EAST TEXAS MOTOR FREIGHT LINES v. LOFTIS et ux.
• Court: Texas Court of Appeals

219 S.W.2d 133

EAST TEXAS MOTOR FREIGHT LINES v. LOFTIS et ux.

No. 6424.

Court of Civil Appeals of Texas. Texarkana.

March 17, 1949.

Rehearing Denied March 30, 1949.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Action by Richard L. Loftis and wife against the East Texas Motor Freight Lines to recover for injuries sustained by the plaintiffs when an automobile in which plaintiffs were riding collided with a parked truck of the defendant. From a judgment for the plaintiffs, the defendant appeals.

Judgment affirmed.

Strasburger, Price, Holland, Kelton, & Miller, W. M. Taylor, Jr. and Royal H. Brin, Jr., all of Dallas, for appellant.

James S. Grisham, of Dallas, and Miller & Jackson, of Tyler, for appellees.

HALL, Chief Justice.

Richard L. Loftis and wife, appellees herein, were injured while riding in an automobile driven by Melvin Britton which collided with one of appellant's freight trucks, with van-trailer attached, parked on West Erwin Street in the City of Tyler, Texas, a short time after midnight on February 10, 1946. Appellee Richard L. Loftis, for himself and wife, instituted this suit against appellant for damages to them occasioned by the collision. Based upon a jury verdict in their favor judgment was rendered for appellees.

Appellant's second point is:

"Section 24, Article 6, of the ordinance of the City of Tyler dated August 6, 1943, was improperly admitted into evidence and violation thereof did not constitute negligence per se because:

"(a) Said section is unreasonable, unauthorized and unconstitutional.

"(b) Said section did not have the purpose of preventing accidents such as that involved in the present case."

The facts are that appellee Richard L. Loftis and wife, Melvin Britton and Charlsie Ann Dunn on the evening of February 9, 1946, went in Britton's car to Mack's Town Tavern which is located a short distance West of Tyler on the Wills Point Highway. These parties danced at the Tavern until about midnight. They returned to Tyler shortly after midnight, traveling east on the Wills Point Highway. This highway on entering the City of Tyler becomes West Erwin Street. Appellant's truck with trailer attached headed east was parked on the south side of Erwin Street next to the curb near Gerard's Steak House. It was in this position when Britton drove his car into the back end of the trailer which resulted in the injury of Loftis and wife and the death of Charlsie Ann Dunn. Shortly before the collision it had been snowing, sleeting and raining, but at the time of the accident it was misting rain and the street was wet, according to Britton. Appellee's testimony shows further that Britton's car was being driven at twenty-five to thirty miles per hour and that the car was within a few feet of appellant's trailer before Britton and his guests observed it — so close that Britton, the driver, could not apply the brakes. The impact was so severe that the left wheels of the trailer were driven forward several inches and the right side of the automobile demolished. It is undisputed that Loftis and wife and Miss Dunn were invited guests of Britton. It is also undisputed that appellant's truck was parked on a street within the city limits of Tyler and that no freight or other material was being loaded into or being unloaded from it. Appellant's driver testified that he parked the truck for the purpose of going into Gerard's Steak House to get a cup of coffee. The jury found that the driver of the truck was negligent in leaving it "parked on the street at the time and place it was on the occasion in question" and that such negligence was a proximate cause of the collision and the consequent injuries to Loftis and wife. The jury also found Britton, the driver of the automobile, negligent in failing to keep a proper look out, which was either a "proximate cause or a proximate contributing cause of the collision." The jury absolved Loftis and wife of any negligence whatsoever.

The ordinance referred to in appellant's point two is:

"Traffic Ordinance.

"An ordinance regulating traffic upon the public streets of Tyler, Texas, and repealing all other ordinances and section of ordinances in conflict therewith.

"Article 6.

"Stopping, Standing or Parking.

"Section 24. Buses, taxicabs, hackneys, transfer trucks and other public service vehicles prohibited from parking in certain sections.

"It shall hereafter be unlawful for the operators of any bus, taxicab, hackney, transfer truck, or other public service vehicle to park on any public street, alley, or place in the City of Tyler; however, this provision shall not prevent any such vehicle from temporarily stopping in accordance with other parking regulations, for the purpose of and while actually engaged in, taking on or discharging passengers or loading or unloading materials."

Appellant contends that the above ordinance is unconstitutional and void for the reason that it is such a broad and all-inclusive prohibition against parking as to be unreasonable and discriminatory. Especially is this true, it contends, where the street is as wide as West Erwin — sixty feet from curb to curb at the place where the collision occurred.

As heretofore pointed out, there is no dispute in the record of the fact that appellant's truck with trailer attached was parked parallel to the street in the City of Tyler near Gerard's Steak House, nor is there any contention by appellant that the driver of its truck was loading or unloading freight. So the issue here is with respect to the reasonableness of the ordinance prohibiting the parking of motor vehicles upon the streets of the City of Tyler except for the purpose of taking on or discharging passengers or loading or unloading freight. Is the ordinance so unreasonable as to be discriminatory and void? We think not. The preamble or enacting clause of the ordinance in question clearly reveals its purpose. It is denominated "traffic ordinance," and its purpose is to regulate the flow of traffic upon the public streets of Tyler. The power of enacting such ordinance by the city is derived from Art. 11, Sec. 5, of the Constitution of Texas, Vernon's Ann.St., commonly known as "the Home Rule Amendment" and from Revised Statutes, Art. 1175, putting said Constitutional Amendment into effect. It has been many times held by our courts, indeed, R.S., Art. 1175, Sec. 16, emphatically states that cities "have exclusive dominion, control and jurisdiction in, over and under the public streets." Perhaps the leading case dealing with the extent of control a city may exercise over its streets is Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6,...