Havens v. Guetersloh, 6238

• Citation: 255 S.W.2d 233
• Decision Date: 06 October 1952
• Docket Number: No. 6238,6238
• Parties: HAVENS et al. v. GUETERSLOH.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 233

255 S.W.2d 233

HAVENS et al. v. GUETERSLOH.

No. 6238.

Court of Civil Appeals of Texas, Amarillo.

Oct. 6, 1952.

Rehearing Denied Nov. 3, 1952.

Calloway Huffaker, Jr., Tahoka, for appellants.

Klett, Bean & Evans, Lubbock, for appellee.

MARTINS, Justice.

Appellant, Cleo Havens, while driving her automobile from Lubbock to Tahoka collided with the rear of an automobile driven in the same direction on the highway by appellee, Elizabeth Guetersloh. The undisputed evidence reveals that appellee slowed down her automobile to turn off the highway and that appellant likewise decreased the speed of her automobile at the same time. It is the contention of appellants that appellee after slowing down her automobile suddenly stopped the same on the highway and that appellant, Cleo Havens, was unable to stop her car and avoid colliding with it. Appellants sued for damages to their automobile and also for personal injuries suffered by appellant, Cleo Havens. W. T. Havens was not present at the time of the collision and his wife, Cleo Havens, is referred to herein as appellant.

The jury found in response to special issues that appellant failed to keep a proper lookout for appellee's car, failed to keep her car under control, and that appellant in driving her automobile followed the automobile driven by appellee more closely than was reasonable and prudent. The jury further found that appellant's conduct in the above respects constituted negligence and that such negligence was the proximate cause of the collision in question. On these findings of the jury, the trial court rendered judgment that appellants take nothing as against the appellee. Appellants perfected an appeal and assert five points of error. These points will be stated and discussed in the order of their presentation.

Appellants' first point is that the trial court erred in refusing to submit their requested issue as to whether appellant was acting in a state of emergency at the time of the collision. A fundamental element of appellants' requested issue is a definition of 'emergency' as follows: 'The word 'emergency' as used herein means a condition arising suddenly and unexpectedly and not proximately caused by the negligent act or acts of Mrs. W. T. Havens and which called for immediate action on her part without time for deliberation.' This definition does not comply with the rule approved by the Supreme Court of Texas. In the case of Goolsbee v. Texas & N. O. R. Co., 243 S.W.2d 386, 388, the Supreme Court approved the following instruction: 'By the term 'emergency', as used in this charge, is meant a condition arising suddenly and unexpectedly and not proximately caused by any negligent act or omission of the person in question and which calls for immediate action on his part and without time for deliberation.' The error of appellants' definition in not containing the word 'omission' is readily apparent as applied to the case here in issue as the evidence discloses that any asserted condition of emergency was proximately caused by omissions on the part of the appellant as found by the jury in the cause. 'Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.' Rule 279, Vernon's Texas Rules of Civil Procedure; Hooks v. Orton, Tex.Civ.App., 30 S.W.2d 681, syl. 10, 11; Talley Transfer Co. v. Cones, Tex.Civ.App., 216 S.W.2d 604, syl. 4; Gulf, C. & S. F. R. Co. v. Jones, Tex.Civ.App., 221 S.W.2d 1010, syl. 5; American Casualty Co. v. Jones, Tex.Civ.App., 146 S.W.2d 423, syl. 5, 6.

A further consideration of appellants' first point reveals there is no evidence of probative force in the record that the acts of appellant 'were the instinctive result of a feeling of fear and fright occasioned by the apparent danger to the car' in which she was riding, nor is there any evidence of 'alarm', or of 'the apprehension of peril' or of 'the startled, dazed, or confused condition of the plaintiff's mind.' Beck v. Browning, Com.App., 129 Tex. 7, 101 S.W.2d 545, 546, syl. 2, 3. The appellant's own testimony is that the road was wet and slick; that appellee 'was slowing up and that she was slowing up, too'; and that when appellee stopped 'I applied my brakes just as quick as I could and I started sliding and I didn't have any control of the car after I started sliding.' The evidence in the record is not sufficient to make out the issue of sudden peril or emergency. Ynsfran v. Burkhart, Tex.Civ.App., 247 S.W.2d 907, syl. 22, 23.

Further, the refusal of the trial court to submit appellants' issue as to emergency or sudden peril, if conceded to be raised by any evidence of probative force, was harmless error in that the jury found that appellant failed to keep a lookout, failed to keep her car under control, and that she followed the car of appellee more closely than was reasonably prudent and that such acts were negligence and the proximate cause of the collision. 'The negligence of plaintiff must not have concurred in bringing about a situation of peril'. Beck v. Browning, supra; Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, syl. 14, 15; White v. Munson, Tex.Civ.App., 162 S.W.2d 429; Ynsfran v. Burkhart, supra; Caraway v. Behrendt, Tex.Civ.App., 224 S.W.2d 512, syl. 3. For the reasons hereinabove set forth, appellants' first point is overruled.

Appellants' second, third and fourth points will be discussed jointly as these points assert that the verdict of the jury was contrary to the evidence in that the undisputed evidence wholly failed to show that appellant failed to keep a proper lookout, failed to keep the car under control, and that appellant followed the automobile driven by appellee, Elizabeth Guetersloh, more closely than was reasonable and prudent for the speed of such vehicle upon and the condition of the highway. The rules as to examination of the evidence under such assignments are too well known to require a statement thereof and citation of authority.

The record reveals that both appellant and appellee testified that the road was wet. This testimony was corroborated by the testimony of the bus driver and of officers placed on the stand by appellants. Appellant also testified that the road was slick. The testimony reveals that appellee did not skid the tires on her car at the place of the collision. Appellant testified, 'Well, our speed was slowing up as we were approaching the bus. * * * I applied my brakes just as quick as I could and I started sliding and I didn't have any control of the car after I started sliding.' Appellant further testified that she tried to pull around when she saw that she was not going to be able to stop and that she couldn't pull around appellee's car. Since appellee was able to stop her car without sliding the tires or using the brakes, accepting appellant's testimony that appellee did stop on the highway, the jury was clearly authorized to find on appellant's testimony that she could neither stop her car nor turn the same aside or...