Hunter v. Carter

• Decision Date: 12 January 1972
• Docket Number: No. 552,552
• Citation: 476 S.W.2d 41
• Parties: Otis S. HUNTER, Individually and as Next Friend For Shirley Ann Hunter, Appellant, v. Robert Lynn CARTER et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 41

476 S.W.2d 41

Otis S. HUNTER, Individually and as Next Friend For Shirley Ann Hunter, Appellant, v. Robert Lynn CARTER et al., Appellees.

No. 552.

Court of Civil Appeals of Texas Houston (14th Dist.).

Jan. 12, 1972.

Rehearing Denied Feb. 2, 1972.

Harlan Harper, Jr., Fanning & Harper, Dallas, for appellant.

William J. Ehlert, Brenham, James Seabolt, Talbert, Giessel & Stone, Houston, for appellees.

BARRON, Justice.

This is a personal injury case arising from an automobile collision.

Shirley Ann Hunter, plaintiff-appellant, was a guest in defendant Robert Carter's automobile. They and another couple were returning to Prairie View A & M after spending several hours at the Collegian, a drinking and dancing establishment frequented by students of Prairie View. Robert Carter was driving east on U.S. Highway 290 well in excess of the posted night speed limit of 65 miles per hour.

U.S. 290 is a four-lane highway with two-lanes for automobiles traveling in an easterly direction and two in a westerly direction. A few miles outside of Hempstead, defendant Mary Aguilar was traveling east on Highway 290 at a speed of 40 to 50 miles per hour. She was in the outside lane next to the shoulder of the road, and was approaching an automobile in the inside lane preparing to make a left turn off the highway.

At the crest of a hill, defendant Carter overtook and collided with the rear of defendant Aguilar's automobile, propelling it forward a few hundred yards and around, facing her vehicle in a westerly direction. Her car thereupon burst into flames. Carter's automobile continued forward 200 to 300 yards.

Appellant Hunter suffered abrasions and bruises over her body and a fracture of the right femur mid-shaft, which required surgical insertion of a metal rod and later removal thereof. Suit is brought against Aguilar for negligence and against Carter alleging gross negligence under the Texas Guest Statute, Vernon's Ann.Civ.St. art. 6701b.

The trial court granted an instructed verdict for defendant Aguilar and granted judgment on the verdict for defendant Carter. Appeal is made listing 14 points of error. The first six relate to error in granting an instructed verdict for defendant Aguilar. Points seven through eleven assert error in submission of special issues numbers 19 and 20 relating to defendant Carter's intoxication and appellant's knowledge of such intoxication. The last points relate to error in rendering judgment for defendant Carter.

An instructed verdict is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled, as a matter of law, to a judgment. A jury may not be instructed to return a verdict if there is sufficient evidence to raise a fact issue on any theory of liability . Stephenson v. O'Neal, 433 S.W.2d 804, 806 (Tex.Civ.App.--Houston (14th Dist.) 1968, writ ref'd n.r.e.).

The specific allegations of negligence of defendant Aguilar pleaded by appellant are failure to maintain a proper lookout to the rear, bringing her vehicle to a halt, driving too slowly, and failing to give a signal of her intention to stop or decrease her speed, in violation of art. 6701d, sections 68(c) and 70(3). At issue on appeal is whether there is sufficient evidence to raise a fact issue on any theory of liability.

All testimony must be considered in a light most favorable to the one against whom the instructed verdict was given. Fireman's Fund Insurance Company v. Martinez, 387 S.W.2d 443, 448 (Tex.Civ.App.--Austin 1965, writ ref'd n.r.e.).

There is generally no duty on the part of the driver to maintain a lookout to the rear. Solana v. Hill, 348 S.W.2d 481 (Tex.Civ.App.--Eastland 1961, writ ref'd n.r.e.). The cases cited by appellant note some exception to this general rule, namely a duty to maintain such lookout when preparing to stop, slow down, change directions, or similar activity. There is no evidence that defendant Aguilar was in the process of doing any of these.

The evidence on this allegation, as well as the allegation of bringing her vehicle to a halt and violation of 6701d, failing to signal intention of stopping or reducing speed, is that Aguilar was traveling in the right-hand lane at about 40 to 50 miles per hour. The only testimony to the contrary is to the effect that she appeared to be stopped or stopping, because Carter came upon her so quickly. This testimony was later neutralized by Carter when testifying that he could not swear to the above and could not refute the statements of Aguilar and appellant that Aguilar was traveling 40 to 50 miles per hour. The fact that Carter was driving Well in excess of the speed limit easily explained how the gap between his and Aguilar's automobiles closed so rapidly.

If this be any evidence indicative of a fact question for the jury, it amounts to no more than a scintilla--a mere suspicion or speculation that a fact exists. Such evidence is insufficient to raise an issue. The Court in Satterwhite v. Weedn, 415 S.W.2d 445, 447 (Tex.Civ.App.--Waco 1967, no writ) citing Joske v. Irvine, 91 Tex . 574, 44 S.W. 1059, 1063 (1898), upheld an instructed verdict and said:

'. . . it is the duty of the Court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being 'any evidence'.' (Parenthesis added)

There are no cases cited and no evidence showing that under these circumstances traveling at a speed under the posted speed limits is negligence. Appellant's first group of points is overruled.

Appellant's next group of points pertain to error in submitting special issues relating to defendant Carter's state of intoxication and to appellant Hunter's knowledge of such intoxication. Her contention is based on claimed pleadings and evidence insufficient to submit such special issues and she further contends that the issue inquiring of Hunter's knowledge concerning Carter's intoxication constituted a comment on the evidence.

The requirements of volenti non fit injuria are that plaintiff has knowledge of facts constituting a dangerous condition or activity, knows the condition or activity is dangerous, appreciates the nature or extent of the danger, and voluntarily exposes himself to this danger. Turner v. Clark, 412 S.W.2d 707 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.). Volenti non fit injuria is an affirmative defense, and under Rule 94, Tex.R.Civ.P., must be set forth affirmatively. It need not be set forth by name. The purpose of Rule 94 is to give the opposing party notice of the defensive issues to be tried. Musso v. Cronley, 422 S .W.2d 840 (Tex.Civ.App.--Waco 1967, no writ). Defendant has set forth in his answer all the elements of volenti non fit injuria.

The pleadings speak of the risk assumed by appellant in riding with Carter. The risk, being Carter's intoxicated state, was not spelled out specifically, but from the inception of this case the alleged intoxication of Carter was in issue. This fact and the pleading of the elements of volenti are sufficient to satisfy the purpose of Rule 279, Tex.R.Civ.P., i.e., to give the complaining party adequate notice of the contentions which he...