Ford Motor Co. v. Madden
| Decision Date | 18 June 1931 |
| Docket Number | No. 1069.,1069. |
| Citation | 42 S.W.2d 165 |
| Parties | FORD MOTOR CO. v. MADDEN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; Sam R. Scott, Judge.
Action by Mrs. Stella D. Madden, on behalf of herself and her minor son, Eugene Madden, against the Ford Motor Company. From an adverse judgment, defendant appeals.
Affirmed.
Turner, Rodgers & Winn, of Dallas, and Spell, Naman & Howell, of Waco, for appellant.
Richey & Sheehy, of Waco, for appellees.
This suit was instituted by appellee Mrs. Madden for herself and minor son, Eugene Madden, against appellant to recover damages occasioned by the death of T. E. Madden, husband of Stella and father of Eugene.
Appellant, a foreign corporation, maintained a branch office in Dallas where it assembled and sold Ford and Lincoln cars. D. C. Woods and Snyder Atwell were, for appellant, in charge of the department in Dallas for the sale of Lincoln cars. Appellant appointed certain designated dealers in Texas to sell the Lincoln cars. In 1928 there were approximately two hundred and forty-one such dealers. Each dealer was required to purchase and keep on hand one or more Lincoln cars to be used for demonstrative purposes. It was the duty of Mr. Atwell to visit said dealers from time to time and inspect the cars which were being used as demonstrators and see that same were kept in good repair. He testified that it was necessary for him to, and he did, drive said cars in order to ascertain whether same were in good order. It was his duty to assist the local dealers in the sale of Lincoln cars, and whenever he or the Ford Motor Company learned of a prospective purchaser of a Lincoln car, he took the matter up with the local dealer in said territory.
On August 1, 1928, Mr. Atwell, having learned of a prospective purchaser of a Lincoln car at Lampasas, came to Waco, accompanied by D. C. Woods, to see Cruger Company, the local dealer for the Lincoln cars in the territory embracing Lampasas, and informed it of the prospective purchaser and requested Cruger Company to permit him to take the Lincoln car, which Cruger Company had for demonstrating purposes, to Lampasas to see if same could be sold to the prospective purchaser. T. E. Madden, the salesman for the Lincoln cars with Cruger Company, accompanied Atwell and Woods in the car to Lampasas. On the trip out Mr. Woods drove the car to Belton and either Mr. Madden or Mr. Woods drove same from there to Lampasas. On the return trip, Mr. Atwell drove the car to a point within about four miles of Waco, at which place he collided with a White truck parked on the side of the road, which resulted in the death of both Mr. Madden and Mr. Woods. While at Lampasas some work was done on the car by a mechanic, adjusting the lighting system. On the return trip, the parties took their evening meal at Temple.
Mr. Atwell testified that in making the trip to Lampasas, as well as on the return trip, the car was driven at a rate of speed from forty to fifty miles; that they could tell when the car was going from forty-eight to fifty miles because at that rate the car would make a peculiar roar showing or indicating that it was running at said rate; that he was an experienced driver and was familiar with the Lincoln car and with the highway between Temple and Waco; that before he reached Lorena he turned on the lights of the car; that the lights were not in perfect condition, but were sufficient for him to drive by; that there were no cars coming toward him and none behind him with lights to either hinder or help him in seeing; that just before the collision, he came up a hill or incline, and that as he came over the top of the hill, he saw a Ford truck headed toward Temple parked on his (Atwell's) left-hand side of the road and on the Ford truck's right-hand side; that in order to keep from hitting the Ford truck, he turned his car to the right, thereby placing his car farther on the right-hand side of the highway, when he then for the first time saw the White truck parked on the right-hand side of the road headed toward Waco, the way he (Atwell) was going; that in his opinion the White truck was not more than thirty or forty feet from the Ford truck and that same was parked in such way that he was not able, at the rate of speed he was driving, to avoid colliding with the White truck; that he struck the left rear end of the White truck with the right front end of the Lincoln car.
The testimony tends to show that the Ford truck had stopped on its right-hand side of the road by reason of a flat casing; that the inside or left wheels thereof were from eight to twenty inches on the hard-surfaced portion of the road and the remainder on the gravel or shoulder side; that the White truck going toward Waco had, by reason of engine trouble, stopped about two hundred feet from the Ford truck and was parked on its right-hand side of the road with the inside or left wheel extending from eight to twenty inches on the hard-surfaced portion of the road; that at said point the hard-surfaced portion of the road was fifteen feet wide and the gravel portion on each side was five feet, making the total width of the road twenty-five feet; that if the Ford truck and the White truck, under the most favorable aspect of the testimony, had been standing opposite each other, there would have been a space between them of from ten to thirteen feet. Neither of said trucks had any lights on either the rear or front thereof. They had been parked in said position for about two hours at the time of the collision, waiting for assistance to come from Waco. During the two hours the trucks had been so parked, a large number of automobiles, including the Greyhound bus, had passed along the highway between said trucks, said cars being driven, according to witnesses, at all rates of speed from slow up to the limit of the law. It became sufficiently dark for Atwell to, and he did, turn on his car lights some ten or fifteen miles before he reached the place of the collision.
Based on sufficient pleadings to support same, the jury found that Mr. Atwell was driving the car at more than thirty-five miles per hour, and that he was attempting to pass the truck at a greater rate of speed than fifteen miles an hour, each of said acts at the time was in violation of the criminal statutes. The jury found that each of said acts was a proximate cause of the injury. The jury further found that Mr. Atwell was driving the car at a dangerous rate of speed, without sufficient headlights, and that he failed to keep a proper lookout, and that each of said acts was negligence and a proximate cause of the injury. The jury further found, in response to pleadings by appellant, that the injury was not the result of an unavoidable accident; that appellant had not loaned Mr. Atwell to the Cruger Company to assist it in making a sale of the car; that Atwell and Madden were not engaged in a joint enterprise; that Madden did not have an equal right with Atwell to control the driving and operation of the car at the time of the collision; that the failure of the Ford truck or the White truck to have lights burning was not the proximate cause of the collision; that the way in which the Ford truck and the White truck were parked on the highway was not negligence; that the way said trucks were parked did not obstruct the free passage of automobiles on said highway; that their being parked in the way they were, without lights, did not constitute a dangerous situation on the highway; that Madden was not negligent in failing to request Atwell to decrease his speed; that Madden did not acquiesce in, or approve of, the speed Atwell was driving;...
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