Intges v. Dunn

• Citation: 311 S.W.2d 877
• Decision Date: 20 March 1958
• Docket Number: No. 13205,13205
• Parties: Evelyn Ann INTGES, Appellant, v. Elmer L. DUNN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 877

311 S.W.2d 877

Evelyn Ann INTGES, Appellant, v. Elmer L. DUNN, Appellee.

No. 13205.

Court of Civil Appeals of Texas, Houston.

March 20, 1958.

Rehearing Denied April 17, 1958.

Combs, Brock & Mitchell, Houston, Richard S. Kennedy, of counsel, Houston, for appellant.

F. Warren Hicks, Sidney Farr, Houston, for appellee.

WOODRUFF, Justice.

This is an appeal from the judgment rendered on a jury's verdict by the District Court of Harris County denying appellant, Evelyn Ann Intges, a recovery against appellee, Elmer L. Dunn, for injuries sustained by her when the automobiles which they were driving collided at the intersection of Broadmoor and Scharpe Streets in the City of Houston shortly after noon on January 15, 1955. The weather was damp and misty and appellant was driving her 2-door Ford south on Broadmoor and appellee was going west on Scharpe. Both streets were 30 feet wide, black-topped with concrete curb and gutters. The collision occurred in the northwest quadrant of the intersection when the appellee's automobile struck the appellant's automobile just behind its door on the lefthand side.

In answer to Special Issues Nos. 1 and 2 the jury found that appellee failed to keep a proper lookout, which was a proximate cause of the collision. By their answers to Special Issues Nos. 3, 4, 5 and 6 it was found that appellant entered the intersection at the same time or before the appellee; that appellee failed to yield the right of way, which was negligence and a proximate cause of the collision. By Special Issues Nos. 7 through 12 the jury found that appellee did not fail to have his automobile under proper control, nor was he driving at a negligent rate of speed, and he did not fail to keep a proper lookout.

In response to Special Issues Nos. 13 and 14 the jury found that appellant failed to make such application of her brakes as a reasonably prudent person would have made, and such failure was a proximate cause of the collision. By Special Issues Nos. 15 and 16 the jury found that she was not driving at an excessive rate of speed, but in response to Special Issues Nos. 17 and 18 they found that she failed to maintain such control of her car as a reasonably prudent person would have done and that such failure was a proximate cause of the collision. After finding the collision was not an unavoidable accident, the jury found appellant's damage to be $2,700.

Appellant moved the court to disregard Special Issues Nos. 13 and 14, and 17 and 18, and to enter judgment in her behalf for $2,700, and, in the alternative, to declare a mistrial. The trial court, however, overruled such motion and entered judgment on the verdict that appellant take nothing, to which action of the court appellant duly excepted. Appellant filed a motion for new trial which was in due time amended and upon being overruled by operation of law she perfected her appeal.

By Point 1 appellant assigns as error the refusal of the trial court to render judgment for her and to disregard, as immaterial, the jury's answers to Special Issues Nos. 13 and 14 finding that appellant failed to make a proper application of her brakes, which was found to be a proximate cause of the collision, because under the jury's findings in response to Special Issues Nos. 3, 4, 5 and 6 she had the right of way and appellant was under no legal duty to anticipate that appellee would not stop his car at the intersection.

It is deemed essential to this discussion to set forth a resume of the pertinent testimony.

Mrs. Intges testified that she was proceeding south on Broadmoor about 20 to 25 miles per hour and as she approached its intersection with Scharpe Street she slowed down by applying her brakes to 20 miles per hour. Upon looking to her right and then to her left, she saw appellee's car coming west on Scharpe Street about 20 to 30 feet from the intersection. Without any further application of her brakes she started across the intersection, she said, at the same rate of speed. Automatically she looked again, first to the right and then to the left, whereupon she saw that appellee's car was then 'practically on top' of her automobile. She stated from what happened the appellee did not 'slow down his car' after she first saw him because he 'got to' her automobile too quickly. Neither did she slow her car from the time she entered the intersection until the collision occurred. She testified that if she had applied her brakes to stop at the time she slowed down at the intersection she could have stopped, and that she felt certain she could have stopped in time to have avoided the collision. She made no effort, so she said, to turn her car to the right when she was in the intersection 'because there was no time for that.'

The police officer who investigated the accident was offered as a witness by the appellant. He stated that appellee Dunn told him he was driving about 30 miles per hour when he first saw appellant and that he immediately hit his brakes.

Appellee Dunn testified that his car was traveling west on Scharpe Street and when he was about 10 feet from its intersection with Broadmoor he first saw Mrs. Intges' automobile. At that time she was about the same distance from the intersection as he was. Both he and appellant, so he said, were going about the same speed--of 25 miles per hour--and as soon as he saw her he applied his brakes and they entered the intersection 'pretty close to the same time' but she kept going at the same rate of speed.

The proof showed that both streets were 30 feet wide and that Dunn's car traveled 16 feet into intersection befoer it struck appellant's car. The point of collision was one foot west of the center line of Broadmoor. Appellant's car was struck back of the door on the left side, and the force of the collision swerved it to the right. It continued on Broadmoor in a southerly direction, striking the curb and a tree at the southwest corner of the intersection and came to rest in an upright position some 32 feet from the point of the collision facing in an easterly direction on Broadmoor.

Appellee testified that just before the collision he turned his car to the right in an effort to avoid hitting appellant's car, but the impact 'drug' his car slightly to the left. He further stated that his car 'pretty near stopped when they went together' and 'did not proceed forward.'

Appellant does not challenge the sufficiency of the evidence to support Special Issues Nos. 13 and 14, finding that she failed to make a proper application of her brakes which was a proximate cause of the accident, but contends that such finding should be disregarded and that judgment should have been entered in her behalf.

She fervently argues that the jury having found, in response to Special Issues Nos. 3, 4, 5 and 6, that she had the right of way, she thereby acquired the right to proceed through the intersection without stopping, and that she was under no legal duty to anticipate the negligent conduct on appellee's part in failing to stop his car at the intersection, nor was she under any legal duty to make an application of her brakes or to stop her car.

In support of her position appellant cites Buchanan v. Lang, Tex.Civ.App., 247 S.W.2d 445, writ ref. n.r.e.; Schuhmacher Co. v. Bahn, Tex.Civ.App., 78 S.W.2d 205, dism.; Evans v. Rush, Tex.Civ.App., 254 S.W.2d 799; and Roddy v. Herren, Tex.Civ.App., 125 S.W.2d 1057, no writ history. Although these cases involved intersectional collisions between motor vehicles, the fact findings in the trial court not only established in each case that the appellee had the right of way but in addition thereto he was completely exonerated of all contributory negligence. These opinions, therefore, are based upon fact findings entirely different from those here and the holdings are not sufficiently applicable to the questions raised here to warrant their discussion. In the main they do no more than to hold that ordinarily in these cases the issue of contributory negligence is one of fact and not of law.

Appellant has cited several cases which involved fact situations where the courts have held that contributory negligence was not established by the proof, as a matter of law. The first case is Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, error ref. There a motorcyclist traveling in a lefthand lane of a 2-lane arterial highway was attempting to pass a truck traveling in the same direction in the righthand lane and was struck by the truck when the driver gave no warning signal before turning to the left at an intersection. It was held that the fact finding of contributory negligence on the part of the motorcyclist was not sustained by the evidence, as a matter of law. The fact situation there clearly demonstrates both the complete absence of any opportunity for the motorcyclist to foresee as a reasonably prudent person the erratic movement of the truck without any warning or signal, and also his complete inability to do anything to avoid the collision. The same distinction in its factual aspects is also present in the case cited by appellant, Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448, no writ history, involving a head-on collision.

We believe the same basic distinction is present in the case of Dallas Railway & Terminal Co. v. Straughan, Tex.Civ.App., 254 S.W.2d 882, 884. The situation which confronted the appellee was created by the unusual movements of the bus in slowing down for a stop sign which the appellee saw immediately before it stopped, followed by the sudden entry of the bus into the intersection, which the appellee discovered and immediately applied his brakes, skidded his wheels, and used all possible means to avoid the collision. Even in this instance, however, the trial court submitted issues on the appellee's failure to keep a proper lookout and operating his automobile at a greater rate of speed than was reasonable, both of which were found...