Evans v. Rush, 6224

• Decision Date: 29 September 1952
• Docket Number: No. 6224,6224
• Citation: 254 S.W.2d 799
• Parties: EVANS v. RUSH.
• Court: Texas Court of Appeals

Page 799

254 S.W.2d 799

EVANS v. RUSH.

No. 6224.

Court of Civil Appeals of Texas, Amarillo.

Sept. 29, 1952.

Cooper & Finney, Amarillo, for appellant.

Campbell & Brock, Lubbock, for appellee.

PITTS, Chief Justice.

This is a suit for actual and special damages sought by reason of plaintiff's personal injuries sustained as a result of an automobile collision occurring in Lubbock county soon after sundown on February 3, 1951. Suit was filed by appellee, Elmer Rush, 55 years of age, against appellant, A. J. Evans, 42 years of age, alleging, in effect, a collision between a 1948 four-door Dodge sedan owned and operated by appellant and a 1948 Ford pickup in which appellee was riding while the same was owned and being operated by appellee's son, V. T. Rush, 37 years of age. The collision occurred about nine miles west of the town of Lubbock at the intersection of a farm-to-market road known as Shallowater-Wolfforth road running north and south and State Highway Number 290 running east and west while appellant with five passengers in his car was driving south on the farm-to-market road and appellee was riding in the front seat of his son's Ford pickup as it was being operated east on the said State Highway. The case was tried to the court without a jury and judgment was rendered for appellee for actual and special damages in the total sum of $6,500 from which judgment appellant perfected his appeal.

At the request of appellant the trial court filed its findings of fact and conclusions of law convicting appellant of negligence which directly and proximately caused the collision that resulted in appellee's injuries and further exonerated appellee from any negligence which caused or contributed to cause the collision. At the request of appellant for additional findings the trial court further found in detail, in effect, that neither appellee nor his son, V. T. Rush, was guilty of any negligence that caused the collision in question but that they both exercised such ordinary care as any prudent person would have exercised under the same or similar circumstances.

Appellant predicates his appeal upon several points charging that the trial court erred in convicting appellant of actionable negligence at the time and place of the collision and in acquitting appellee and his son, V. T. Rush, of negligence. However, nowhere has appellant excepted to or in any manner challenged or attacked any of the original findings or additional findings as to liability made and filed by the trial court upon the written request of appellant authorized by Rules 296-298, Texas Rules of Civil Procedure. It has been consistently held that an appellant must accept and be bound by the findings of the trial court, and particularly those made and filed at his own request as was done in the instant case, when he does not except to or in any manner challenge or attack such findings. Under such circumstances the appellate courts must also accept such findings as being true. Zapata County v. Llanos, Tex.Civ.App., 239 S.W.2d 699; Curry v. E. E. Stone Lumber Co., Tex.Civ.App., 218 S.W.2d 293; Boyd v. Boyd, Tex.Civ.App., 207 S.W.2d 969; Vilbig v Gillette, Tex.Civ.App., 238 S.W.2d 569. For the reasons stated both appellant and this court arebound by findings of the trial court establishing liability hereinafter stated in substance and must accept them as being true.

The record reveals that some of the material facts were controverted and the testimony heard concerning the same was conflicting. However, the case was tried without a jury and the trial judge heard and passed on the evidence. He was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. It was his duty to reconcile the conflicts in the testimony. His findings are binding upon appellant and this court if they are supported by any evidence of probative force and every reasonable presumption must be indulged in favor of such findings. Boston Ins. Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118; Barrick v. David, Tex.Civ.App., 204 S.W.2d 520; Shock v. Mrs. Ragsdale's Foods Co., Tex.Civ.App., 228 S.W.2d 353; Henwood v. Polis & Hagan, Tex.Civ.App., 231 S.W.2d 720.

Appellant's own admissions made as a witness convicted himself of actionable negligence and the trial court so found. He admitted that he knew a visible stop sign existed on his side of the road at the intersection and testified that he stopped there briefly. However, the trial court found that, if he did stop, he thereafter moved on across the intersection without yielding the right of way to the approaching Rush car at a time when it was hazardous so to do. The trial court further found that visible stop signs existed at the point of intersection where the road in question crossed the Highway in question requiring appellant to stop his motor vehicle and yield the right of way to the approaching Ford pickup and other moving motor vehicles travelling on the Highway near the intersection but appellant failed to yield the right of way to the approaching Rush car and his failure so to do resulted in the collision. Such findings were based upon uncontroverted evidence, including a further admission of appellant to the effect that he pulled his car up to the intersection and stopped briefly (this statement is controverted). There he observed near the point of intersection two cars travelling east and one car travelling west on the Highway as he sought an opportunity or 'a gap to cross' the Highway and continue his journey south. The lead eastbound car and the westbound car 'passed each other just a little east of the intersection', leaving the...