Erickson v. High, 1048

• Decision Date: 18 December 1974
• Docket Number: No. 1048,1048
• Citation: 517 S.W.2d 702
• Parties: Dorothy E. ERICKSON, Appellant, v. Tracy Don HIGH, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 702

517 S.W.2d 702

Dorothy E. ERICKSON, Appellant, v. Tracy Don HIGH, Appellee.

No. 1048.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 18, 1974.

Rehearing Denied Jan. 8, 1975.

W. R. Malone, Paul C. Murphy, III, Malone, Murphy & Fenley, Kenneth E. Lanier, Houston, for appellant.

Don A. Weitinger, Weitinger & Steelhammer, Houston, for appellee.

TUNKS, Chief Justice.

This is a personal injury case based on an automobile collision. The appellant, Dorothy E. Erickson, plaintiff in the trial court, drove her car from a parking lot onto a highway and was struck by a car being driven by the appellee, Tracy Don High, who was one of the defendants in the trial court.

The case was submitted to a jury. The jury found High guilty of various acts and omissions of negligence each of which was the proximate cause of the collision. The jury also found that Mrs. Erickson failed to yield the right-of-way when she drove from the parking lot onto the highway and that such failure was a proximate cause of the collision. The trial court did not submit any issues as to whether such failure to yield the right-of-way was negligence. The plaintiff's objection to the charge on the ground that the court failed to submit that negligence issue was overruled. The trial court rendered judgment that Mrs. Erickson take nothing and she has perfected her appeal. She has, however, filed no statement of facts.

The appellant has only one point of error. That point is based on the trial court's failure to submit an issue asking if her failure to yield the right-of-way was negligence. It is her contention that without a finding of negligence, the verdict will not support a judgment for the appellee on the basis of contributory negligence. The appellee, on the other hand, argues that the appellant's failure to yield the right-of-way when she entered the highway from the parking lot was a violation of Vernon's Tex.Rev.Civ.Stat.Ann. art. 6701d, § 74 (1969), and that such violation was negligence per se.

On the record before us, without a statement of facts, we cannot sustain appellant's point of error. Without a statement of facts, an appellate court must presume that the trial court submitted those issues which were raised by the evidence and the answers to which were not established as a matter of law. We may not presume that there was contradictory evidence which necessitated the submission of some issue which the trial court did not submit. In Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946), the Court held that an appeal from a judgment notwithstanding a...