Fullingim v. Dunaway

• Decision Date: 11 February 1954
• Docket Number: No. 4934,4934
• Citation: 267 S.W.2d 483
• Parties: FULLINGIM et al. v. DUNAWAY et al.
• Court: Texas Court of Appeals

Page 483

267 S.W.2d 483

FULLINGIM et al. v. DUNAWAY et al.

No. 4934.

Court of Civil Appeals of Texas, Beaumont.

Feb. 11, 1954.

Rehearing Denied April 28, 1954.

Orgain, Bell & Tucker, Beaumont, for appellants.

Cecil, Keith & Mehaffey, Beaumont, Grover C. Lowe, Woodville, for appellees.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in favor of appellees Virginia Dunaway, et al. against appellants Alf Fullingim, et al. in the district court of Hardin County. The suit was for damages resulting from an automobile-truck collision which occurred on the Silsbee-Spurger highway north of Silsbee in Hardin County.

On September 19, 1951 Carl Dunaway, Irvin West and Boyd Jenkins were riding in Dunaway's car from a point near Silsbee toward Fred. Carl Dunaway was driving. The car collided with a loaded log truck belonging to Fullingim and operated by one Purkey. Shortly before the collision something had gone wrong with the truck and the driver had stopped it on the highway where it was standing at the time of the collision. As a result of the collision Dunaway's car was demolished, Dunaway and West were killed and Boyd Jenkins survived although he suffered some serious injuries. Three separate suits were filed in behalf of Jenkins and the survivors of Dunaway and West. The cases were consolidated and tried as a single suit.

The case was tried to a jury, which found in response to special issues submitted that the appellants, defendants in the trial court, were negligent in leaving the log truck on the highway without a flagman, in failing to have a taillight burning on the rear of the trailer of the truck, and in failing to have the vehicle equipped with a red light visible from a distance of 500 feet from the rear and that each of these acts constituted negligence and was a proximate cause of the collision. The jury also found in its verdict that Dunaway, the driver of the car, was not driving his car at an excessive rate of speed, that he did not fail to keep a proper lookout, that he did not fail to have his vehicle under proper control, and also found that the collision was not the result of an unavoidable accident. On these and other findings of the jury the court rendered judgment in favor of the appellees and against the appellants for $22,800. After their motion for new trial was overruled the appellants have perfected their appeal to this court for review.

The appellants bring their appeal under 10 Points of Error. These points are briefed and discussed by the appellants in groups of related points and we shall so discuss them here.

Under their Points Nos. 1 and 2 the appellants complain of the action of the trial court in refusing to submit their special requested issues Nos. 17 and 18. Special requested issue No. 17 sought to inquire of he jury whether the vehicle driven by Dunaway had faulty brakes. Special Issue No. 18, predicated upon an affirmative answer to such Issue No. 17, sought to inquire whether the operation of Dunaway's vehicle with such brakes was the sole cause of the accident and collision. The evidence in the case upon which the appellants rely as raising the question of insufficient brakes on the Dunaway car was that of Highway Patrolman O'Quinn. He testified in substance that he went to the scene of the collision shortly after it occurred and examined the demolished car driven by Dunaway. The car, after the collision, had run off the highway toward a graveyard on the right-hand side of the road and the front wheels were stopped in the graveyard; he testified that he examined the vehicle at the scene of the accident, the lights were still burning, the steering gear was pretty good; there was not enough of the windshield left to tell anything about it, and the brake pedal went all the way to the floor. He also testified that in the debris of the car he found a can of brake fluid still in the floor bed. He also testified that there was no evidence, such as skid marks, etc., to show any attempt to stop Dunaway's car before it struck the truck. We consider this testimony as being highly speculative on the question of whether Dunaway's car before the collision was equipped with inadequate brakes. The mere fact that the brake pedal, when depressed, went all the way to the floor of the car after it had received the impact of the terrific collision with this large truck, and impact so forceful that the car was practically demolished, two men killed and the third badly hurt, would not entirely negative the idea that the alignment and operative condition of the brakes were probably caused by the collision itself. However, assuming, for the purpose of this discussion, that the evidence was sufficient to raise the issue of defective brakes, we think no error is shown by the trial court's refusal of these two special requested issues. The court had given in its charge a special issue inquiring whether Dunaway failed to have his vehicle under proper control immediately prior to the collision. The jury by its verdict found that he did not so fail. We think that this issue on proper control of the car included the question of whether Dunaway's car was equipped with improper brakes and therefore the court did not err in refusing the requested issues. This is the holding in the case of Schuhmacher v. Holcomb, Tex.Civ.App., 174 S.W.2d 637 by the Supreme Court.

Likewise by its Points 9 and 10 the appellants complain of the trial court's refusal to submit special requested issues Nos. 14 and 15 which sought to inquire whether Carl Dunaway was unable to bring his car to a stop within the range of vision of his lights and in event of an affirmative answer to that issue whether such failure was the sole cause of the accident. We think the matters sought to be inquired about under these special issues were also submitted by the court in its charge in the special issue which inquired whether Dunaway failed to have his car under proper control. This was expressly so held in the case of North East Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 489, opinion adopted by the Supreme Court. In that case the issues involved and the wording thereof were almost identical with those of the instant case. In the opinion the following holding was made:

'We believe that Special Issue 15-G, given at the request of petitioner, 'Do you find from a preponderance of the evidence that on the occasion in question, J. L. Hodges failed to have his truck under proper control?' included the subject matter of refused requested issue No. 7 as to whether Hodges was operating the truck at such a rate of speed as that he could not stop it within his range of vision, and included the inquiry in refused requested issue No. 12 as to whether he failed to reduce the speed of his truck upon meeting an approaching automobile that had blinding lights. If he was operating his truck at such speed that he could not stop it within his vision range, if he failed to reduce its speed upon meeting the blinding lights of an approaching automobile, manifestly he was failing to have his truck under proper control. The issue given and the two refused related alike to the manner in which Hodges operated his truck immediately before he collided with petitioner's truck, that is, his conduct after he met the car with the blinding headlights, this last circumstance being pleaded by both sides, fully developed in the testimony and therefore presumably well understood by the jury. The several inquiries under consideration were merely various phases and different shades of meaning of one ultimate defensive fact issue, that is, lack of proper control of his truck by Hodges. Having given such issue...