Firestone Tire & Rubber Co. v. Rhodes

• Decision Date: 18 March 1953
• Docket Number: No. 10115,10115
• Citation: 256 S.W.2d 448
• Parties: FIRESTONE TIRE & RUBBER CO. et al. v. RHODES.
• Court: Texas Court of Appeals

Page 448

256 S.W.2d 448

FIRESTONE TIRE & RUBBER CO. et al. v. RHODES.

No. 10115.

Court of Civil Appeals of Texas, Austin.

March 18, 1953.

Critz, Kuykendall, Bauknight & Stevenson, by F. L. Kuykendall, all of Austin, for appellants Firestone Tire & Rubber Co. and Clarence R. Enis.

Strasburger, Price, Kelton, Miller & Martin, by Hobert Price, all of Dallas, for appellants John Bremond Co. & Marvin L. Buck.

Alvis & Carssow, by Wm. B. Carssow and C. E. Alvis, Jr., Austin, for appellee.

ARCHER, Chief Justice.

W. B. Rhodes, appellee herein, brought this suit against The Firestone Tire & Rubber Company and one of its employees, Clarence E. Enis, and against John Bremond Company and one of its employees, Marvin L. Buck, for personal injuries sustained by Mrs. Rhodes and for damages to the Rhodes' car.

The charge submitted to the jury consisted of 96 special issues. On the 2nd day of May, 1952, the jury returned its verdict in favor of plaintiff.

The appellants, The Firestone Tire & Rubber Company and Clarence R. Enis, filed three motions asking (1) that the trial court disregard the answers to certain special issues and to render a judgment non obstante veredicto as to these appellants; (2) that the court declare a mistrial because of conflicting answers, and (3) that if judgment be rendered against them they have judgment of indemnity over and against the defendants, John Bremond Company and Marvin L. Buck. These motions were overruled and refused by the trial court and on the 31st day of May, 1952, a judgment in the sum of $11,041.45 was rendered and entered against all of the defendants, jointly and severally, to which action these appellants excepted. These appellants, in due time, filed their motion for a new trial, which motion was overruled on the 18th day of July, 1952, to which action of the court these appellants excepted and gave notice of appeal.

Appellants John Bremond Company and Marvin L. Buck duly filed and presented their motions for a new trial which were overruled, to which they excepted and gave notice of appeal.

The appeal of Firestone and Enis is based on three points assigned as error and are:

First Point

The trial court erred in overruling and refusing appellants' motion to disregard the answers of the jury to Special Issues Nos. 4, 5, 6, 7, 8 and 9, and to render judgment non obstante veredicto, and to render judgment that plaintiff take nothing as to these appellants.

Second Point

The trial court erred in failing and refusing to grant appellants' motion for a mistrial based upon conflicting answers of the jury to Special Issues Nos. 4 to 9 inclusive with the answers to Special Issues Nos. 72 to 75, inclusive.

Third Point

The trial court erred in refusing to allow appellants, The Firestone Tire & Rubber Company and Clarence R. Enis, indemnity over and against John Bremond Company and Marvin L. Buck, for such amounts as these appellants might pay to appellee under and by virtue of the judgment rendered herein.

We believe that the trial court should have granted appellants Firestone's and Enis' motion to disregard the answers of the jury to Special Issues Nos. 4, 5, 6, 7 and 9 and should have rendered a judgment non obstante veredicto and rendered judgment that plaintiff take nothing as to these appellants.

Special Issue No. 4 inquired if the driver of the Firestone Truck failed to maintain proper control of his vehicle at the time and on the occasion in question. The jury's answer was 'yes.'

In response to Special Issue No. 5 the jury found that such failure to maintain proper control was negligence and further found that such negligence was a proximate cause of the damages.

Special Issue No. 7 inquired if the driver of the Firestone truck failed to maintain a proper lookout, and the jury found that such driver did so fail, and that such failure was negligence and was a proximate cause of the damages.

It appears from undisputed facts that Mrs. W. B. Rhodes, wife of appellee, was driving her car north on Congress Avenue in the lane next to the center stripe, and when she was about 12 feet north of the end of the bridge her car was struck by the Firestone truck being operated by Enis, and that immediately before the collision, the Firestone truck and the Bremond truck had come in contact with each other.

In his pleadings appellee alleged numerous acts of negligence on the part of the drivers of both trucks.

By their pleadings Firestone and Enis admitted that the Firestone truck did cross the center line of the street and strike the Rhodes car. They alleged that just before the collision the Firestone truck was being driven south on Congress Avenue in the lane next to the center line of the street; that just before such collision the Bremond truck crossed over into the lane in which the Firestone truck was traveling and struck the Firestone truck causing it to swerve to the left into the lane in which the Rhodes car was traveling and hit the car.

The appellants Firestone and Enis contend that the collision of Firestone's truck and the Rhodes car was caused solely by the Bremond truck crossing over into the lane in which the Firestone truck was traveling and striking the Firestone truck and causing it to swerve into the lane in which the Rhodes car was traveling.

The appellants Firestone and Enis contend as a matter of law there is no evidence to support the jury's finding that Enis failed to keep a proper lookout and maintain proper control, and that even if he did so fail, such failure could not be the proximate cause of the collision of his truck with the Rhodes car, and that they were entitled to a take nothing judgment.

The jury found that Enis was not operating his truck at an excessive rate of speed; that Enis failed to maintain proper control; that such failure was negligence and a proximate cause; that Enis failed to keep a proper lookout; that such failure was negligence and a proximate cause; that Enis failed to keep his truck on his righthand side, but such failure was not negligence; that Enis failed to keep his truck within the lane in which he was driving, but that such failure was not negligence; that Enis was not driving too close to the Bremond truck; that Enis failed to turn his truck to the right to avoid the collision but such failure was not negligence; that Enis was not attempting to pass the Bremond truck, and that the collision was not solely caused by the manner in which the Firestone truck was being driven; that Enis, driver of the Firestone truck, did not fail to let the driver of the Bremond truck pass, and was not trying to beat the Bremond truck onto the bridge; that Enis failed to apply his brakes, but such failure was not negligence.

As regarding the driver of the Bremond truck, the jury found that he was not driving at an excessive rate of speed; that he fialed to maintain proper control, that such failure was negligence and a proximate cause; that he failed to keep a proper lookout, and that such failure was negligence and a proximate cause; that he failed to keep his truck within the lane in which he was traveling and such failure was negligence and a proximate cause; that he was driving too close to the Firestone truck, and that such driving was negligence and a proximate cause; that he failed to turn to the right, that such failure was negligence and a proximate cause; that the driver of Bremond's truck allowed his truck to swerve into the traffic lane in which the Firestone truck was being driven and struck the Firestone truck, and thereby caused Firestone's truck to swerve into the lane in which the Rhodes car was traveling, that such action was negligence and a proximate cause of the collision; the jury further found that Buck, the driver of Bremond's truck, immediately before the collision of the Firestone truck and the Rhodes car, was attempting to pass the Firestone truck, that such was not being made under safe conditions and was negligence and a proximate cause of Firestone's truck striking the Rhodes car; the driver of the Bremond truck was found by the jury to have driven his truck into the lane in which the Firestone truck was traveling without ascertaining that he could do as with safety, and that such driving was negligence and a proximate cause.

Enis testified that he had been driving a truck for Firestone for nine years and prior to that was a truck driver for Red Arrow Freight Lines for seven years; that on the morning of the accident he was driving south on Congress Avenue after crossing First Street toward the bridge in the west traffic lane next to the center line of the street, and was watching the on-coming traffic.

The witness said he did not see the Bremond truck until it hit him on the right front fender and wheel, and knocked the steering wheel out of his hand and caused his truck to go across the line into the Rhodes car; that his truck after being hit went round and wound down on the bridge and stopped against Mrs. Wood's car. The witness further testified that after the Bremond truck hit the right front wheel of his truck and turned it to the left that he did not have time to regain control of his truck, and that from the time his truck was hit by the Bremond truck until he came in contract with the Rhodes car not over two seconds passed. That at all times he was watching the movement of traffic.

The witness testified that after the collision he could not guide his truck.

On cross-examination by attorney for Bremond, Enis testified that he never saw the Bremond truck until it hit him and at that time the Bremond truck was alongside him. That he did not attempt to pass the Bremond truck or pull to his right.

Mr. Buck, driver of the Bremond truck, by deposition testified that on the 7th of October, 1949, the date of the accident, he had started with a load of groceries to Fredericksburg and that just after he had crossed First Street on Congress Avenue his truck was alongside the Firestone truck, and...