Gibson v. Texas Co.

• Decision Date: 26 September 1929
• Docket Number: (No. 2351.)
• Citation: 20 S.W.2d 349
• Parties: GIBSON v. TEXAS CO. et al.
• Court: Texas Court of Appeals

Page 349

20 S.W.2d 349

GIBSON v. TEXAS CO. et al.

(No. 2351.)

Court of Civil Appeals of Texas. El Paso.

September 26, 1929.

Rehearing Denied October 17, 1929.

Appeal from District Court, Pecos County; C. R. Sutton, Judge.

Suit by Fred Gibson against the Texas Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Williams & Jackson, of Fort Stockton, for appellant.

Seay, Seay, Malone & Lipscomb, of Dallas, and Hart Johnson and T. M. Milam, both of Fort Stockton, for appellees.

PELPHREY, C. J.

Appellant, Fred Gibson, brought this suit against the Texas Company and J. A. Frederick for damages to his automobile alleged to have been occasioned by the negligence of the agent of appellees. He alleged the damage arose from a collision between a truck operated by said agent and the automobile of appellant operated by his daughter.

He alleged several grounds of negligence, among which was that the agent drove the truck on the left-hand side of a street in the town of Fort Stockton instead of the right-hand side, and thereby caused the collision; and that when the agent neared appellant's automobile he turned the truck shortly and sharply to the left, and thereby ran the same directly into appellant's automobile, when if he had turned to the right, or if he kept going straight, no collision would have occurred.

Appellee Frederick answered by general demurrer, certain special exceptions, a general denial, specially denied that the truck was either owned or operated by the Texas Company, or by its agent; and specially alleged that the truck at the time of the alleged accident was traveling in a southwesterly direction, and that appellant's car was traveling in an easterly direction at a rapid rate of speed, and that appellant's daughter, when she approached the intersection of the streets where the accident is alleged to have occurred, saw, or by the use of ordinary care and diligence could have seen, the truck and could have avoided the collision.

The Texas Company adopted the answer of appellee Frederick; specially denied that it was having the truck driven and operated on the streets of Fort Stockton on the date alleged, that the driver of the truck was its agent, that appellee Frederick was its agent, or that it owned or was having operated the truck in question; and asked for judgment over against Frederick.

The case was tried to a jury, and at the conclusion of the testimony the court instructed a verdict for both appellees, and Gibson has appealed.

Appellant in his brief presents eight assignments of error, all attacking the court's action in instructing a verdict.

The evidence is brief, and we will here quote those portions bearing upon the question before us.

Miss Mary Naomi Gibson, who was driving appellant's car, testified: "At the time the accident occurred, I was in Fort Stockton, Pecos County, Texas, near the Burton-Lingo Lumber yard, which building faces east. The accident occurred in front of this building about one hour before sunset. I had just turned northeast. I first saw the truck only a few seconds before it hit my car; I was on the right side of the street, and the truck was about the middle of the street when I first saw it. After I saw the truck, it changed its course before it struck my car. It seemed that he attempted to drive his truck in front of my car. It was just a second before it ran into the car that I was in that he turned his course — the time was so short I could barely notice him turn his truck. I was driving about 15 or 20 miles per hour. The truck was traveling much faster than my car. The truck struck my car on the left front wheel. When struck by the truck, the impact of the collision crushed the front wheel of my car and the impact was so great that my car completely turned around and was facing south when stopped. My car was headed almost south when it stopped after the truck ran into it. * * * I had just turned off the street that runs north and south, or in other words had crossed this street when the truck struck my car. * * * I do not recall exactly how far the truck was from me when I first saw it, but I think it was about 25 feet. * * * I did attempt to turn my car to avoid the accident, and I turned it farther toward the right. I did this immediately prior to the accident. * * * Immediately prior to the accident I...