Hall v. Weaver

• Court: Texas Court of Appeals
• Writing for the Court: Higgins
• Citation: Hall v. Weaver, 101 S.W.2d 1035 (Tex. App. 1937)
• Decision Date: 04 February 1937
• Docket Number: No. 3468.,3468.
• Parties: HALL v. WEAVER.

101 S.W.2d 1035

HALL v. WEAVER.

No. 3468.

Court of Civil Appeals of Texas. El Paso.

February 4, 1937.

Rehearing Denied February 25, 1937.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by P. Weaver against H. D. Hall. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Appellee, Weaver, was struck by an automobile driven by appellant, Hall, at the intersection of Main and Bell streets in the city of Houston. For the injuries sustained, Weaver sued and recovered judgment for damages, from which Hall appeals.

At the time of the accident Weaver was walking across Main street from the west to the east on the south side of Bell street. Shortly after Weaver passed the center of Main street, he was struck by the automobile which was traveling north on Main street. The front end of the car struck Weaver about 1 foot to the right (east) of the left (west) side of the car.

Among the acts of negligence charged against the defendant are the following:

"(k) Said defendants were guilty of negligence at the time and on the occasion in question in that said defendant H. D. Hall failed to avoid striking plaintiff by steering the automobile which he was driving so as to go around plaintiff."

"(l) Said defendants were guilty of negligence at the time and on the occasion in question in failing to slow down and stop said automobile in time to have avoided striking plaintiff."

"(n) Said defendants were guilty of negligence at the time and on the occasion in question, in that defendant H. D. Hall discovered and actually realized the dangerous position plaintiff was in and the danger of striking him at a time when he, H. D. Hall, could have avoided striking plaintiff, with safety to himself and his vehicle, by steering his automobile to his right around and past plaintiff but this said defendant then and there wholly failed to do."

"(p) Said defendants were guilty of negligence at the time and on the occasion in question, in that defendant H. D. Hall discovered and actually realized the dangerous position plaintiff was in and the danger of striking him at a time when he, H. D. Hall, could have avoided striking plaintiff, with safety to himself and his automobile, by immediately applying his brakes, but this said defendant then and there wholly failed to do."

"(r) Said defendants were guilty of negligence at the time and on the occasion in question, in that defendant H. D. Hall discovered and actually realized the dangerous position plaintiff was in and the danger of striking him, at a time when he, H. D. Hall, could have avoided striking plaintiff, with safety to himself and his automobile, by using the means at his command to avoid such accident, but this said defendant then and there wholly failed to do."

Other acts of negligence charged against the defendant are indicated by the findings made, later stated.

The defendant, in its answer, charged plaintiff with contributory negligence in various particulars.

The findings returned may be here stated as follows:

Hall was operating his automobile at a greater rate of speed than 20 miles per hour as he approached the intersection of Main and Bell streets, which was a proximate cause of the accident.

Hall failed to keep a proper look-out as he approached the intersection, which was negligence proximately causing the accident.

Hall failed to yield the right of way to plaintiff, which was negligence proximately causing the accident.

Hall did not fail to keep his automobile under proper control immediately prior to and at the time of the accident.

Hall was operating his automobile at the rate of 30 miles per hour as he approached the intersection immediately prior to the accident, which was negligence proximately causing the accident.

Hall failed to give audible signal or warning of the approach of his automobile immediately prior to the accident, but this was not negligence.

The automobile was equipped with suitable and efficient brakes.

Findings 21 and 22 are that Hall was negligent in failing to steer his automobile around plaintiff which was a proximate cause of the accident.

Findings 23 and 24 were that Hall was negligent on the occasion in question in failing to stop his autombile in time to avoid striking plaintiff, which was a proximate cause of the accident.

Question 25 reads:

"Do you find from a preponderance of the evidence that defendant H. D. Hall, discovered and actually realized the dangerous position plaintiff was in and the danger of striking him at a time when he, H. D. Hall, could have avoided striking plaintiff with safety to himself and vehicle by using the means at his command?"

This was answered, "Yes."

Various acts of contributory negligence charged against plaintiff were submitted and found in his favor, except upon the issue of his alleged failure to keep a proper lookout for automobiles going north on Main street. As to this issue, the plaintiff was found guilty of contributory negligence.

Fahey & Cooper and Frank G. Dyer, all of Houston, for appellant.

Blanchard & Woodul, Ernest H. Folk, and Walter F. Woodul, all of Houston, for appellee.

HIGGINS, Justice (after stating the facts as above).

In view of the finding that plaintiff was guilty of contributory negligence in failing to keep a proper look-out, it is apparent the judgment awarding damages to plaintiff is based upon the issue of discovered peril.

Appellant questions the sufficiency of the evidence to raise such issue, but this is without merit.

Defendant denied he saw plaintiff before the collision, but his denial is not conclusive of the issue. Under the evidence, the jury was abundantly warranted in disbelieving such denial and returning an affirmative answer to question 25, under the holdings in Brown v. Griffin, 71 Tex. 654, 9 S.W. 546; Hines v. Arrant (Tex. Civ.App.) 225 S.W. 767; St. Louis Southwestern Ry. Co. v. Anderson (Tex.Civ. App.) 206 S.W....