J. H. Strain & Sons, Inc. v. Cox

• Decision Date: 22 September 1967
• Docket Number: No. 4188,4188
• Citation: 422 S.W.2d 753
• Parties: J. H. STRAIN & SONS, INC., Appellant, v. James D. COX, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 753

422 S.W.2d 753

J. H. STRAIN & SONS, INC., Appellant, v. James D. COX, Appellee.

No. 4188.

Court of Civil Appeals of Texas Eastland.

Sept. 22, 1967.

Harris, Anderson, Henley, Shields & Rhodes, C. A. Searcy Miller, Dallas, for appellant.

C. J. Eden, Breckenridge, for appellee.

GRISSOM, Chief Justice.

On November 11, 1965, at about 8:30 a.m., James D. Cox was driving his pickup and pulling a trailer east on a part of highway 180 in Stephens County which was under construction by J. H. Strain & Sons, Inc., when he collided with Strain's sweeper. He filed this suit in Stephens County to recover the damages caused thereby. The Strain Company filed a plea of privilege to be sued in Taylor County, where it has its residence. Its post office address was alleged to be Tye, Taylor County, Texas. In a trial to the court, Strain's plea of privilege was overruled and it has appealed.

Appellant presents eleven points of error . Its main contention appears to be that the record shows the inability of Cox to see Strain's sweeper was caused by dust raised by vehicles of the traveling public, for which it was not reasonable . Of course, this conclusion does not follow if Strain had a duty to warn Cox of the location of its sweeper on Cox's side of the road and its presence there was so obscured. Appellant also contends there was no evidence, or insufficient evidence, that Strain or its employee was responsible for operation of the sweeper; that there was no evidence, or insufficient evidence, that it failed to maintain a flagman or warning sign at the time and place of the accident and no evidence, or insufficient evidence, that either Carrington, appellant's flagman, who, appellee testified, directed him to drive on the south side of the road under construction, or Cook, appellant's sweeper operator, were acting within the course of their employment by appellant. There was sufficient evidence to support the conclusion that Strain passed appellant's barricade and flagman, Carrington, and was directed by him to travel on the south side of the road which was under construction by appellant; that Cox did drive east on the south side for about three fourths of a mile and, when the road ahead was so clouded with dust, raised by either passing cars or Strain's road sweeper, or both, that he could not see the sweeper, which was stopped near the center of the south side of the road, that he ran into the sweeper and suffered the damages for which he sued. There...