Gillette Motor Transport v. Fine

• Decision Date: 30 June 1939
• Docket Number: No. 13928.,13928.
• Parties: GILLETTE MOTOR TRANSPORT, Inc. v. FINE et ux.
• Court: Texas Court of Appeals

Page 817

131 S.W.2d 817

GILLETTE MOTOR TRANSPORT, Inc. v. FINE et ux.

No. 13928.

Court of Civil Appeals of Texas. Fort Worth.

June 30, 1939.

Rehearing Denied October 6, 1939.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Action by E. J. Fine and wife against the Gillette Motor Transport, Inc., for injuries sustained in an automobile collision. To review a judgment for the plaintiffs, defendant brings error.

Reversed and remanded.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.

Raymond E. Buck and McCrea & Rhodes, all of Fort Worth, for defendants in error.

DUNKLIN, Chief Justice.

This is the second appeal in this case, the disposition of the former appeal appearing in Tex.Civ.App., 103 S.W.2d 196.

The suit was instituted by E. J. Fine and wife, Mrs. E. J. Fine, against the Gillette Motor Transport, Inc., a corporation, to recover damages for personal injuries sustained by Mrs. Fine in a collision between a Ford passenger car, in which Mrs. Fine was riding, driven by Alvia Bailey, with a motor truck owned by the defendant, and driven by Meredith McCarty, its employee and agent.

The collision occurred approximately at noon on Sunday, March 3rd, 1935, within the city limits of Fort Worth, on East Belknap Street, one of the public streets of the city, which runs in an easterly and westerly direction, at a point where Beach Street, another public street of the city, running in a northerly and southerly direction, abuts on the north boundary of East Belknap Street, but does not cross the latter street. Belknap Street was 52 feet wide and its middle was shown by a marked line. Immediately before the collision the Ford car was traveling in an easterly direction and the truck in a westerly direction. The Ford car was following another automobile immediately in front, driven by Mark Riley. When the Riley car reached a point opposite the south end of Beach Street, it turned left, to go onto Beach Street. Bailey, driver of the Ford car, then started to make a left turn around the Riley car and back to East Belknap Street, so as to continue his journey on in an easterly direction on that street. While he was passing the Riley car on that turn, the Ford car collided with the truck traveling to the west on East Belknap Street, and as the result of that collision, Mrs. Fine sustained serious bodily injuries.

On the trial of the case before a jury, plaintiffs recovered a judgment against the defendant for the sum of $14,000, which was the amount of damages assessed by the jury.

The case was submitted to the jury on special issues, preceded by these instructions:

"(1) Ordinary care, as used in this charge, means that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.

"(2) Negligence, as that term is used herein, means the failure to use ordinary care.

"(3) Proximate cause, as that term is used herein, means that cause which unbroken by any new independent cause produces the damage. It is not necessarily the nearest cause in time or physical sequence but is a cause without which the damage would not have happened, and from which that damage or some like damage might reasonably have been anticipated as a natural and probable consequence. New and independent cause, as that term is used above, is a cause or agency over which neither the plaintiff nor the defendant has any control, and which cause or agency a person of ordinary prudence under the same or similar circumstances would not have reasonably foreseen as likely to occur or bring about the result complained of, and which cause is of itself sufficient to cause the damage in question. There may be more than one proximate cause.

"(4) Proper lookout, as that term is used herein, means that lookout that a person of ordinary prudence would have used under the same or similar circumstances.

"(5) Preponderance of the Evidence, as that term is used herein, means the greater weight of the credible testimony."

Findings of the jury were as follows:

Issue 1. Immediately prior to the collision the defendant's truck was being operated at a rate of speed in excess of 20 miles per hour.

Issue 2. Which was a proximate cause of the collision.

Issue 3. Immediately prior to the collision the truck, or some part thereof, was being operated on the south half of Belknap Street.

Issue 4. Which was negligence.

Issue 5. And which negligence was a proximate cause of the collision.

Issue 6. As the truck approached the place of the collision the driver failed to keep a proper lookout for automobiles approaching him from the west.

Issue 7. Which failure was a proximate cause of the collision.

Issue 8. Immediately prior to the time of the collision the car in which plaintiff was riding was not being operated at a rate of speed in excess of 20 miles per hour.

Issue 9. Although instructed by the court that there would be no need to answer issue 9, if they had answered the preceding issue No. 8 "no", the jury nevertheless answered it favorably to the plaintiffs.

Issue 10. Alvia Bailey, driver of the Ford car, did not fail to keep a proper lookout for automobile traffic as he approached the scene of the collision.

Issue 11 was not answered because it was submitted only hypothetically.

Issue 12. Alvia Bailey was not guilty of negligence in turning his car to the left immediately prior to the collision.

Issue 13 was not answered because submitted only hypothetically.

Issue 14. The collision was not an unavoidable accident.

Issue 15. The failure of plaintiff, Mrs.. Fine, to warn Alvia Bailey, the driver of the Ford car, of the approach of the defendant's truck was not negligence.

Issue 16 was not answered because submitted only hypothetically.

Issue 17. $14,000 was fixed as the amount required to fairly compensate Mrs. Fine for the injuries she sustained.

Following are findings of the jury in answer to special issues requested by the defendant:

1. The failure of A. J. Bailey, driver of the Ford car, to yield the right-of-way to the car driven by M. Riley in front of him, and to the defendant's truck, as they were passing one another on the occasion of the collision, was not negligence.

2. Nor was it a proximate cause of the collision.

3. The conduct of M. Riley in attempting to make a left hand turn of his car immediately before the collision was not a new and independent cause of the collision.

All of those issues of negligence were duly tendered in the pleadings of the respective parties. The issues of negligence on the part of Bailey, the driver of the Ford car, and of Mrs. Fine, riding with him, were pleaded as contributory negligence and the burden of proof on all issues submitted was in proper form.

Much of appellant's brief is devoted to an extended review of the testimony, with citations of many authorities to support the contention advanced that the evidence introduced was insufficient as a matter of law to sustain the findings of the jury of negligence of the truck driver, and further, that the testimony showed conclusively as a matter of law, that the collision resulted solely from the negligence of the driver of plaintiff's Ford car, in attempting to go around the Riley car at the time in the manner and under the surrounding circumstances.

According to testimony of the driver of the plaintiff's car, when he had turned to the left and attempted to pass the Riley car, there was sufficient room between the front end of the Riley car and the middle line of Belknap Street for him to do so without passing north of the middle line of Belknap Street, and that the collision occurred by reason of the fact that just before it happened the truck had passed to the south side of the center line of the street, directly in front of him, and the collision occurred on that side of the highway.

According to his further testimony, the Riley car, which he was attempting to pass and which had turned from the right or south side of Belknap Street to go into Beach Street to the north, was going very slowly and had almost stopped; and further, that he was traveling about 18 miles an hour, and did not discover the approaching truck until it was too late for him to avoid running into it.

Several witnesses testified that after the collision they saw skid marks of the wheels of the truck, which showed that it had skidded several feet before it collided with the Ford car. Most of those witnesses testified that those skid marks were entirely on the north side of the middle line of Belknap Street, and that the collision occurred on that side. That testimony was corroborated by the undisputed physical fact that the right corner of the front end of the Bailey car was crushed by contact with the truck and the Bailey car then dragged to the north boundary of the street by the truck, while its driver was applying his brakes with much force.

But according to testimony of some of the witnesses, those skid marks showed that the truck had swerved from the north side to the south side of the street before the collision, and that the collision occurred on that side. And according to the testimony of some of the witnesses, the truck was traveling faster than 20 miles per hour just before the two vehicles collided.

The evidence relied on by the plaintiff to support his allegations that the truck driver did not keep a proper lookout for cars on the highway approaching from the west, was that it was near mid-day, with nothing whatever to obstruct visibility and prevent him from seeing plaintiff's car as it approached the place where the accident occurred.

In view of those conflicts in the testimony, we cannot say that the findings of the jury, of negligence on the part of the truck driver in the several matters shown in the answer to special issues, were without support of any competent evidence.

Nor can it be said that the evidence showed conclusively as a matter of law that the...