Harbert v. Mathis, 7484
| Decision Date | 12 May 1950 |
| Docket Number | No. 7484,7484 |
| Citation | 230 S.W.2d 380 |
| Parties | HARBERT v. MATHIS. |
| Court | Texas Court of Appeals |
Watson & Willoughby, Stamford, Tom Davis, Haskell, for appellant.
McMahon, Springer & Smart, Abilene, for appellee.
This suit was brought by Otis Harbert, appellant, against L. H. Mathis, appellee, for damages sustained to Harbert's automobile when it was overturned on State Highway No. 283 about there and one-half miles north of Rule, Texas. Appellant, as plaintiff, alleged that appellee was driving his automobile with a two-wheel trailer attached in a northerly direction on such highway at night and that the trailer had no light or lights as required by law; that appellant who was driving his automobile along the highway in the same direction as appellee, attempted to pass him and that appellee thereupon turned his automobile sharply to the left into a road crossing said highway, thereby causing appellant, in an attempt to avoid a collision, to turn his automobile to the left into the borrow ditch where it was overturned and damaged. Appellee's answer pleaded, among other defenses, that appellant was guilty of contributory negligence in attempting to pass appellee's automobile when within 100 feet of a road intersection. The trial was before the court without a jury and judgment rendered in favor of appellee, L. H. Mathis. Harbert brings this appeal.
The court filed findings of fact and conclusions of law in which it was found that appellee was guilty of various acts of negligence as alleged and that such acts were contributing causes of the injury and damages sustained by appellant. The court made other findings and conclusions to the effect that at the time of the accident, appellant was attempting to pass appellee's car within 100 feet of a road intersection; that appellant was guilty of negligence per se in undertaking to so pass appellee's car within such distance of a road intersection in violation of the laws of this State and that such negligence was a proximate cause of the injuries and damages sustained by appellant.
In appellant's first point, it is contended that there was no evidence to support the finding of the court that appellant was guilty of negligence per se in undertaking to pass appellee within 100 feet of a road intersection. Sections 56 and 57 of Article 6701d of Vernon's Revised Civil Statutes of Texas are as follows:
'Sec. 56. No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred (100) feet of any vehicle approaching from the opposite direction.
'Sec. 57. (a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
'1. Where sight restriction is such that the section of highway being traversed lies within a no passing zone as determined and marked in accordance with Section 58.
'2. When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing;
'3. When approaching within one hundred (100) feet of any bridge, viaduct, or tunnel.
'(b) The foregoing limitations shall not apply upon a one-way roadway.'
Section 57(a) 2 makes it unlawful to drive an automobile on the left side of the road when approaching within 100 feet of or traversing an intersection. It is to be noted that this provision of the statute does not specifically prohibit passing another car going in the same direction within 100 feet of an intersection. What is prohibited is driving on the left side of the road in such proximity to an intersection. The passing of another car in the process is immaterial so far as the existence of negligence per se is concerned. An examination of the evidence shows that it is uncontradicted and conclusive appellant did, while attempting to pass appellee, drive his automobile on the left side of the highway within 100 feet of the road intersection. According to appellant's own testimony, he was voluntarily driving on the left side of the road. The following is an example of appellant's testimony of this point: ...
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