Greene v. Anders
| Decision Date | 28 October 1971 |
| Docket Number | No. 5030,5030 |
| Citation | 473 S.W.2d 622 |
| Parties | Harrison GREENE, Jr., Appellant, v. Lee W. ANDERS et ux., Appellees. |
| Court | Texas Court of Appeals |
Naman, Howell, Smith & Chase, Waco, for appellant.
Jones, Francis & Youts, Waco, for appellees.
Automobiles being driven by Mrs. Lee W. Anders and the appellant, Harrison Greene, Jr., collided in an intersection that was controlled by traffic signal lights. Mr. and Mrs. Anders brought this lawsuit against Greene seeking damages for personal injuries allegedly suffered by Mrs. Anders, and for property loss. American States Insurance Company intervened, alleging that it carried the collision coverage on the automobile owned by the Anders; that it had paid them $548.45 as a result of damages to their vehicle caused by the collision; that it was subrogated to their claim against Greene for their property damage; and that it sought recovery of $548.45 from Greene.
Answering special issues numbered as follows, the jury (1) found that Greene entered the intersection on a red light, (2) which was a proximate cause of the collision; (3) found that Greene failed to keep a proper lookout, (4) which was a proximate cause; (5) found that Mrs. Anders was injured in the collision, and awarded her (6a) $4,000 for past physical pain and mental anguish; (6b) $1,150 for future physical pain and mental anguish; (6c) $500 for loss of earnings, (7) $366.45 for past 'medical, chiropractic and hospital care,' and (8) $100 for necessary chiropractic care in the future; (9) failed to find that Mrs. Anders entered the intersection on a red light; (11) failed to find that Mrs. Anders entered the intersection 'at such time that she would be crossing such intersection when the red signal was shown for her direction of travel;' (13) failed to find that Mrs. Anders failed to keep a proper lookout; and (15) found that the accident was not unavoidable. The parties stipulated that the Anders' automobile was damaged in the amount of $598.45.
Judgment was rendered on the verdict and the stipulation, awarding the Anders their damages for medical expenses and personal injuries plus $50 for the deductible portion of their collision policy; and awarding American States Insurance Company $548.45.
In his first point, Greene assigns error to the refusal of the trial court to submit his requested issues and instruction to the jury, which would have inquired whether Mrs. Anders failed to yield the right-of-way to him and whether that failure was negligence and a proximate cause. The requested instruction asked that 'right-of-way' be defined in the issues as 'the right to the immediate use of the intersection in question.'
In his brief, Greene acknowledges that in view of the finding that he entered the intersection on a red light, Mrs. Anders had the statutory right-of-way. Nevertheless, he argues that Mrs. Anders' continuing duty to exercise ordinary care required her, under the record, to yield the right-of-way to him After she entered the intersection.
Of course, if the requested issues were not raised by the pleadings or the evidence, the court was not obliged to submit them. Rules 277 and 279, Texas Rules of Civil Procedure.
Greene's pleading that Mrs. Anders failed to yield the right-of-way is as follows:
'It is further shown that the defendant, Greene, was entitled to the right-of-way at the intersection in question and that plaintiff, Sandra H. Anders, was guilty of negligence which was a proximate cause of the collision in question in failing to yield the right-of-way to defendant, Harrison Greene, Jr., which conduct on the part of Sandra H. Anders was a violation of Section 71(a) of (Article 6701d, V.A.T.C.S.) which provides as follows:
'The driver of a vehicle approaching the intersection of a different street or roadway shall stop, yield and grant the privilege of immediate use of such intersection in obedience to any stop sign, yield right-of-way sign or traffic control device erected by public authority, and after so stopping, may only proceed thereafter when such driver may safely enter the intersection without interference or collision with traffic using such different street or roadway.'
'It is shown that at the intersection in question there was a traffic control device which, at the time Sandra H. Anders drove into the intersection in question, required that she stop and yield the right-of-way to defendant Greene.'
We do not interpret the pleading as charging Mrs. Anders with a failure to yield the right-of-way After she entered the intersection .
Moreover, the evidence does not support the submission of the requested issues. Greene and Mrs. Anders both testified that because of automobiles stopped at the intersection, which Greene was passing as he approached the intersection, they were unable to see the other's vehicle until a moment before the collision. There is no evidence that Mrs. Anders knew, before or after she entered the intersection, that Greene was approaching, or that, by the exercise of ordinary care, she could have learned of his approach in time to yield the right-of-way. Therefore, Mrs. Anders was under no duty to yield the right-of-way after she lawfully entered the intersection, and her failure to do so could not have been negligence or a proximate cause of the collision.
The first point of error is overruled.
In his points two, three and four, Greene contends that there is (1) no evidence and (2) no medical evidence that a miscarriage suffered by Mrs. Anders on the 11th day after the collision was caused by the collision, and that the trial court erred in permitting the jury, over proper objection, to consider the fact of the miscarriage in determining its award of damages.
The collision occurred at approximately 8:00 A.M. on February 17, 1970. There is evidence that Greene's vehicle struck the Anders' vehicle on its right side near the windshield; that the 'jolt' of the collision knocked Mrs. Anders from under the steering wheel to 'all the way against the door on the passenger's side'; that prior to the accident she was in good health, had given birth to three children, had never had any difficulty...
To continue reading
Request your trial
-
Rocha v. Campos
...Fort Worth 1977, no writ); In Re Salinas, 530 S.W.2d 633 (Tex.Civ.App. Corpus Christi 1975, no writ); Greene v. Anders, 473 S.W.2d 622 (Tex.Civ.App. Waco 1971, writ ref'd n. r. e.); Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App. Dallas 1973, no writ). Here, the defendant brings forward po......
-
Gerland's Food Fair, Inc. v. Hare
...medical expertise, so we rely on the expert medical testimony of Dr. Goodall to establish their cause. See Greene v. Anders, 473 S.W.2d 622 (Tex.Civ.App.1971, writ ref. n. r. e.); Tyler Mirror & Glass Company v. Simpkins, 407 S.W.2d 807 (Tex.Civ.App.1966, writ ref. n. r. e.); Reliable Life ......
-
K-Mart Corp. v. Pearson on Behalf of Ramos
...612 S.W.2d 199, 203 (Tex.1980); Parker v. Mutual Liability Ins. Co., 440 S.W.2d 43, 46 (Tex.1969); Greene v. Anders 473 S.W.2d 622, 623 (Tex.Civ.App.--Waco 1971, writ ref'd n.r.e.). Furthermore, although Texas courts have consistently approved the test of "reasonable probability" concerning......
-
Butters v. Kane
...145 (1959); Burke v. Shaffer, 184 Neb. 100, 165 N.W.2d 352 (1969); Kelleher v. Tozzi, 7 N.J. 17, 80 A.2d 196 (1951); Greene v. Anders, Tex.Civ.App., 473 S.W.2d 622 (1971). In Lugena v. Hanna, supra, the Court 'Some of the cases decide the issue presented in this case on the theory of estopp......