Hickman v. Finlay, 11310

• Decision Date: 02 June 1965
• Docket Number: No. 11310,11310
• Citation: 392 S.W.2d 147
• Parties: Ross HICKMAN, Appellant, v. Beulah FINLAY, Appellee.
• Court: Texas Court of Appeals

Page 147

392 S.W.2d 147

Ross HICKMAN, Appellant, v. Beulah FINLAY, Appellee.

No. 11310.

Court of Civil Appeals of Texas, Austin.

June 2, 1965.

Rehearing Denied June 23, 1965.

Long, Aronson & Coleman, Tom Long, Austin, for appellant.

Byrd, Davis & Eisenberg, Tom H. Davis, Marion S. Roberts, Jr., Austin, for appellee.

PHILLIPS, Justice.

Appellee, Beulah Finlay, brought suit to recover damages for personal injuries which she sustained when she was struck by the door of an automobile driven by her cousin, appellant Ross Hickman.

Appellant and appellee had been attending a family reunion at the home of a relative. At the conclusion thereof, appellee and appellant's mother decided to leave with appellant and have him drive them home. Appellant went by himself to his car, started it and backed it approximately two car lengths so that the right front door of the car was in front of a driveway in which appellee and his mother were standing. Upon reaching this position, appellant brought his car to a complete stop in the street, the car lights on, the motor running, and the automatic transmission in reverse gear. Appellant maintains that he fully applied the emergency foot brake, however the evidence is not conclusive on this point.

Appellant then waited from five to fifteen minutes while the family gathered in the driveway, talking. During this period, he noticed some articles on the back seat which he felt should be rearranged to make more room on the seat. In order to rearrange the articles, appellant turned around facing the back seat with his right knee upon the front seat and his left foot and leg extended straight. While he was attempting to rearrange the articles, his left foot apparently hit the accelerator causing the car to lurch to the rear from three to five feet. At this time the right door of the automobile, which was four feet, three inches long, was open and appellee and appellant's mother were within the area of the door. The open door knocked both women down and pinned appellee to the ground. A relative reached down, grabbed the bottom of the car door and lifted it up taking the pressure of the car off appellee. Appellee was taken immediately to the hospital and this suit grew out of her injuries.

At the time the car lurched backward, appellee had not touched the door of the car, had not begun to bend over to get into the car, had not lifted either leg or made any move to get into the car. Neither had appellant's mother made any movements toward the car before she was struck.

Judgment in the trial court was for appellee and we affirm this judgment.

Appellant is before this Court on three points of error. The first two points are the error of the trial court's judgment in that there is no evidence of appellant's negligence and the judgment is against the great weight and preponderance of the evidence.

We overrule these points.

The testimony of appellant himself supplies ample evidence that he was negligent in more than one respect in failing to stop his motor while he rearranged the articles in the back seat, in failing to remove the car from gear prior to rearranging the articles in the back seat, in allowing his foot to come in contact with the accelerator pedal which caused the car to lurch to the rear, and in failing to keep a lookout to determine the whereabouts of his prospective passengers. There is direct evidence unaided by presumptions or inferences that the motor of the vehicle was left running, that the vehicle was left in gear and that appellant's foot struck the accelerator causing the movement complained of.

Appellant's third point of error is that of the trial court in holding that appellant's negligence was not a part of and incident to his gratuitous undertaking to transport appellee, so that appellant would have the benefit and protection...