Holly v. Bluebonnet Exp. Co.

• Citation: 275 S.W.2d 737
• Decision Date: 03 February 1955
• Docket Number: No. 12783,12783
• Parties: Truman HOLLY et al., Appellants, v. BLUEBONNET EXPRESS COMPANY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 737

275 S.W.2d 737

Truman HOLLY et al., Appellants, v. BLUEBONNET EXPRESS COMPANY et al., Appellees.

No. 12783.

Court of Civil Appeals of Texas, Galveston.

Feb. 3, 1955.

Rehearing Denied March 3, 1955.

C. Mann Gregg, Texas City, and Talbert & Giessel and Henry P. Giessel, Houston, for appellants.

Wigley, McLeod, Mills & Shirley, V. W. McLeod and J. L. McMicken, Galveston, for appellees.

HAMBLEN, Chief Justice.

This suit arose out of a collision between an automobile and a truck which occurred March 16, 1953 at the intersection of Palmer Road and Logan Street in Texas City. As a result of such collision, John E. Driver, the operator of the automobile was killed, and Truman Holly, a passenger therein, received personal injuries. Suit was filed by Truman Holly, and by the survivors of John E. Driver, against Jack Womack, the operator of the truck, and his employer, Bluebonnet Express Co. Trial was before a jury, which in response to special issues submitted, found the operator of the truck negligent in failing to keep the truck under proper control, which, they found, proximately caused the collision. In response to other issues, the jury found that the operator of the truck did not fail to keep a proper lookout; did not drive at an excessive speed; did not fail to apply his brakes; that his failure to swerve to the right was not negligence; and that Truman Holly and the deceased, John E. Driver, were not in a position of peril at a time when the truck operator could have avoided the collision.

Issues of contributory negligence were submitted, in answer to which, the jury found the deceased, John E. Driver, who operated the automobile, negligent in failing to stop before entering the intersection; in driving into the intersection when the approaching truck constituted an immediate hazard; in failing to keep a proper lookout; in driving at an excessive speed; and in failing to properly apply brakes. All of these acts of negligence were found to be a proximate cause of the collision, but none was found to be the sole proximate cause thereof.

Upon the verdict, judgment was entered denying recovery to the survivors of John E. Driver, and that portion of the judgment is not attacked in this Court. The defendants below, Jack Womack, and his employer, Bluebonnet Express Co., filed a motion for judgment non obstante verdicto as to the recovery sought by the passenger Truman Holly, said motion being based upon the proposition that there is no evidence to support the finding of negligence and proximate cause on the part of the truck driver in failing to keep the truck under proper control. This motion was granted by the trial court and judgment entered denying recovery by Truman Holly. The action of the court in entering such judgment forms the basis of appellants' one point of error, and is admittedly determinable by and dependent upon the question of the sufficiency of the evidence to support such findings. Appellees answer by five counter-points, numbers one, two and three asserting the total lack of evidence to support such findings, and numbers four and five contending in the alternative that the jury's answers were so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. For reasons which we will attempt to state, this Court is of the opinion that there is insufficient evidence in the record presented to sustain the jury findings in answer to such disputed issues, and that the judgment of the trial court is correct, and should therefore be affirmed.

Logan Street runs approximately north and south, and Palmer Road runs approximately east and west, forming a right angle intersection. Traffic moving north or south on Logan Street is controlled at its intersection with Palmer Road by stop signs, and by a flashing red traffic light suspended over the center of the intersection. This same light displays an amber caution light to traffic moving east or west on Palmer Road. Prior to the collision, the automobile in which appellant was a passenger, was travelling south on Logan Street, and appellees' truck was travelling west on Palmer Road, both approaching the intersection. Two vastly differing versions of the collision were presented by the respective litigants. As testified to by appellant Truman Holly, it occurred substantially as follows: John E. Driver approached the intersection of Palmer Road and Logan Street and stopped at the stop sign or stop light which was there. At that moment, a school bus which had been approaching the intersection from the South on Logan Street had just made a right turn on Palmer Road and was going in an easterly direction on Palmer Road. Driver then proceeded into the intersection and began to turn to the left. At that time the appellees' truck was a considerable distance away on Palmer Road, bearing at a rapid rate of speed. Driver completed the turn into Palmer Road about twenty yards behind the school bus, at which time the appellees' truck was about thirty or forty yards east of the intersection, and was passing the bus. The driver of the truck applied his brakes and began skidding his vehicle. When the truck was about five to ten feet from the automobile, it cut to its left at an angle somewhere between forty-five and ninety degrees, and struck the left side of the automobile. At the moment of impact, the automobile was travelling east on Palmer Road, some three feet south of its center line, and ten or fifteen feet east of the intersection.

The manner in which the collision occurred according to the...