Jaynes v. Lee, 6987

• Decision Date: 03 October 1957
• Docket Number: No. 6987,6987
• Citation: 306 S.W.2d 182
• Parties: Forrest R. JAYNES, Appellant, v. Ollie LEE et al., Appellees.
• Court: Texas Court of Appeals

Page 182

306 S.W.2d 182

Forrest R. JAYNES, Appellant, v. Ollie LEE et al., Appellees.

No. 6987.

Court of Civil Appeals of Texas, Texarkana.

Oct. 3, 1957.

Fisher, McLaughlin & Harrison, H. B. Harrison, Paris, for appellant.

Leachman, Gardere, Akin & Porter, Gordon H. Rowe, Jr., Dallas, for appellees.

DAVIS, Justice.

Plaintiff-appellant, Forrest R. Jaynes, sued appellees-defendants, Ollie Lee and his father, Frank Lee, for damages growing out of an automobile-pickup collision on a farm-to-market road in Lamar County, Texas, which collision occurred on September 19, 1955, between 7 and 8 o'clock, a. m. Trial was to a jury, and at the conclusion of the evidence the trial court instructed a verdict in favor of appellee Frank Lee and that action of the trial court is not challenged on this appeal.

In response to special issues, the jury found Ollie Lee guilty of several acts of negligence that were the proximate cause of the collision, and also found that appellant failed to keep a proper lookout at the time and on the occasion in question, and that such was negligence and a proximate cause of the collision. The trial court entered judgment that appellant take nothing and he has appealed, bringing forward two points of error.

By Point 1, appellant complains of the action of the trial court in submitting Special Issues 27 and 28 (being the properlookout and proximate-cause issues), because there was no evidence to support the submission of such affirmative defensive issues. By Point 2, appellant complains of the action of the trial court in submitting such issues and contends that the evidence was insufficient to raise these affirmative defensive issues. These points have been properly preserved by exceptions to the court's charge and motion for new trial.

We think the evidence on the issue of proper lookout is brief and can be summarized. Appellant was driving along a farm-to-market road and the last thing he remembers was that he was driving along the road on his proper right-hand side. The next thing he knew, he awork in a hospital some seven or eight days later, and has never been able to remember anything about the accident. We are highly impressed with his testimony both on direct and on cross-examination and are firmly convinced that he was a victim of retrograde amnesia as a result of the collision. To put it in his words: 'I should have saw it (the pick-up), but if I did, the wreck knocked it outa me. And it ain't come back to me yet.' At the time of the collision he was turning a curve in the road and was struck almost head-on by appellee Ollie Lee. The testimony of appellee Ollie Lee as to how the accident happened was as follows:

'Q. If you would please just explain to the jury as best you can how this accident occurred. A. Well, that's kinda hard to do. I was coming down the hill headed east and approached this curve going, curving to the north and I glanced off out to this pool looking at those highway department men filling up the truck with water, and when I looked back around at the road there we were and it looked like Mr. Jaynes wasn't more than two or three feet ahead of me and we hit.'

A highway patrolman investigated the accident, gave Ollie Lee a ticket for failing to yield the right of way. He pleaded guilty to the charge, and paid a fine.

The evidence does show that the terrain at the place the accident occurred was open and there was nothing to prevent appellant from seeing the approaching pick-up driven by Ollie Lee. But, there is no evidence that appellant saw the pick-up coming or that he had time to get out of the way to prevent being hit after he saw Ollie Lee, if he did, heading into appellant's side of the road. There is no evidence that Ollie Lee was driving on the wrong side of the road for a sufficient time and distance for appellant to have observed such fact in time to get out of the way. In other words, the jury has convicted appellant of contributory negligence merely because there was not anything to keep him from seeing the pick-up coming toward him, and without any evidence as to the distance or the element of time when appellant could have seen Ollie Lee pull over on the wrong side of the road and head toward appellant. Ollie Lee did not testify that he headed his pick-up toward appellant in plenty of time for appellant to get out of the way. He does not contend that anything was wrong with the pick-up that caused him to lose control of it. He just says he was looking off at some men working at the side of the road, and when he looked back he was within two or three feet of appellant's car. Open terrain and visibility is not evidence of contributory negligence. Such may be a circumstances that would aid in establishing contributory negligence for failing to keep a proper lookout, but these bare facts are not sufficient to raise the issue. Therefore, we find and conclude as a fact that the evidence was insufficient to raise the issue of contributory negligence by failing to keep a proper lookout. The burden of proof was upon appellee Ollie Lee to establish the fact of contributory negligence by failing to keep a proper lookout, and this he failed to do. Houston & T. C. Ry. Co. v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L.R.A.,N.S., 386. Such matters cannot be established by presumptions. Socony-Vacuum Oil Co. v. Lambert, Tex.Civ.App., 180 S.W.2d 456, no writ history. The evidence is more...