Graham v. Gatewood
| Decision Date | 26 October 1942 |
| Docket Number | No. 5477.,5477. |
| Parties | GRAHAM v. GATEWOOD et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.
Action by Tressie Jewel Gatewood and others against Evans G. Graham to recover for the death of plaintiff's deceased resulting from injuries, incurred when struck by a truck. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
T. R. Boone and Kearby Peery, both of Wichita Falls, for appellant.
Smoot & Smoot, of Wichita Falls, for appellees.
The record shows that on October 26, 1940, while driving a truck as the agent and representative of Evans G. Graham along the public highway between the towns of Harrold and Oklaunion in Wilbarger County, R. D. Clary had a collision between the truck driven by him and a truck parked on or near the pavement by the employees of Roy I. Carter, the owner of such truck, and one of such employees, Ellis Lee Gatewood, was instantly killed by the collision.
Tressie Jewel Gatewood, the surviving wife of Ellis Lee Gatewood, for herself and as next friend for the four minor children of Tressie Jewel and Ellis Lee Gatewood, and Anna Gatewood, a widow, the mother of the deceased, as plaintiffs, instituted this suit in the District Court of Wilbarger County against Evans G. Graham, the defendant, to recover $30,400 as damages for the death of the deceased alleged to have been caused by the negligence of the defendant and his agents, especially his driver, R. D. Clary.
The negligent acts charged by the plaintiffs against the defendant will, we think, sufficiently appear from the plaintiffs' issues submitted by the court and answered by the jury. The findings for plaintiffs are, in effect, that the defendant was guilty of negligence in failing to keep a proper lookout; that he was driving at a reckless rate of speed under the facts and circumstances; that he was partially blinded by the lights of a car coming from the east and failed to stop while approaching the place of the collision; that he passed the parked truck while he was partially blinded; that the acts above alleged against the defendant and his agent, R. D. Clary, were negligent and such acts were each a proximate cause of the death of deceased.
The findings of the jury on the issues submitted for the defense will reveal the defenses relied on by defendant to defeat a recovery by the plaintiffs. These findings are, in effect, that the deceased did not step into the side of the truck at the time of the accident; that he was not on the main traveled portion of the highway at the time he was killed; that while the deceased was on the main traveled portion of the highway he did not fail to keep a proper lookout for cars approaching from the west; that the deceased just prior to the accident was in a position of danger; that he realized his danger; that there was at hand no place of safety that he could have taken; that he did not voluntarily remain in the position of danger; that the bright lights of the car approaching from the east was not the sole proximate cause of the death of Ellis Lee Gatewood; that the acts of the deceased, together with the acts and conduct of the other employees of Roy I. Carter in placing the truck in the position they did prior to the accident was not the sole proximate cause of the death of the deceased; that the failure to set out flares was not the sole proximate cause of his death. The jury found damages against the defendant, Evans G. Graham, in the sum of $7,500 and distributed the amount among the plaintiffs as follows: to Mrs. Tressie Jewel Gatewood, $2,500, to each of the four minor children, $1,000 and to Mrs. Anna Gatewood, $1,000, and on these findings the court rendered judgment for plaintiffs in the amounts awarded to each of them by the jury.
The appellant presents for review numerous alleged errors of the trial court upon which he asks that the judgment be reversed and the cause remanded.
He contends that the testimony was insufficient to show actionable negligence; that the deceased was guilty of negligence as a matter of law and, in any event, the verdict is contrary to the great weight of the testimony and justice demands that the judgment entered thereon be reversed.
We shall refrain from setting out the testimony offered by appellees to prove the acts of appellant claimed by them to be negligent and on which they based their cause of action nor shall we detail the testimony introduced by appellant to prove the alleged contributory negligence upon which he relies for a defense. We deem it sufficient to state that the alleged negligence of appellant and the alleged contributory negligence of the deceased and of the other employees of Roy I. Carter were sharply controverted issues and the court would not have been authorized in giving a peremptory instruction for either the plaintiffs or the defendant under the rule limiting the authority of a trial judge to direct a verdict on the facts. Jackson v. Langford, Tex.Civ.App., 60 S.W.2d 265, and the authorities therein cited.
The appellant assails as erroneous special issue No. 29 by which the court purports to submit to the jury the issue of the contributory negligence of the deceased in failing to keep a proper lookout for traffic approaching from the west because not submitted as pleaded but as worded the issue limits and conditions contributory negligence on a finding by the jury that the deceased immediately prior to the accident was on the main traveled portion of the highway. On this issue the appellant pleaded that the deceased was guilty of contributory negligence in failing to observe the approaching car from the east and the approaching truck from the west.
Special issue 29 as submitted reads as follows:
The appellant excepted and objected to this issue for the reason that it requires a finding of the jury that the deceased was on the main traveled portion of the highway in order to be guilty of contributory negligence in failing to keep a proper lookout and thus limits the negligence pleaded as a defense. In addition to appellant's exception and objection to the issue as submitted he prepared and submitted his requested issues Nos. 38 and 39, which are as follows:
The court overruled the exceptions and objections and refused the requested issues.
The testimony shows that the highway at the point where the accident occurred consists of a paved strip...
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