Jenkins v. Hennigan

• Citation: 298 S.W.2d 905
• Decision Date: 31 January 1957
• Docket Number: No. 6084,6084
• Parties: Richard W. JENKINS, Appellant, v. V. U. HENNIGAN et al., Appellees.
• Court: Texas Court of Appeals

Page 905

298 S.W.2d 905

Richard W. JENKINS, Appellant, v. V. U. HENNIGAN et al., Appellees.

No. 6084.

Court of Civil Appeals of Texas, Beaumont.

Jan. 31, 1957.

Rehearing Denied Feb. 20, 1957.

Leachman, Gardere, Akin & Porter, Dallas, McDaniel & Hunt, Center, for appellant.

Fulmer, Fairchild & Barnett, Nacogdoches, for appellees.

ANDERSON, Justice.

The suit is the aftermath of a collision between an automobile that was being driven by appellant and one that was being driven by one Allen Williams. By virtue of the collision, Lydia H. Hennigan, who was a passenger in the automobile Williams was driving, sustained personal injuries from which she died a few hours later. Her heirs, she having died intestate and there being no necessity for an administration of her estate, sued to recover for the pain and suffering she is alleged to have experienced before death and to recover money expended or owing for medical care and hospitalization rendered her because of her injuries and for her burial. Trial to a jury resulted in a verdict on which judgment was rendered in favor of the plaintiffs and against the defendant for $10,000. The defendant duly perfected his appeal to this court.

The collision occurred in Shelby County, about 5:30 p. m., on October 9, 1955. Weather conditions and visibility were good at the time and the pavement was dry. The automobiles approached the scene of the collision from opposite directions along the same highway, state highway No. 7. Williams was driving southward; the defendant, northward. Williams was ascending, the defendant descending, the north slope of a hill. The collision occurred within three hundred feet or less of the hill's crest. Williams turned to his left for the purpose of entering a driveway that led to a store east of the highway and, when struck, his car was in the highway's east traffic lane. He commenced his turn before coming abreast of the driveway and was driving more or less southeastward at the moment of impact. His car, a sedan, was struck about midway of its right side by the front end of defendant's vehicle, the rear door having apparently taken the brunt of the blow. Because of the angle at which Williams was driving, and of the fact that just before the moment of impact the defendant veered his own car slightly to his left, or westward, the part of the front end of defendant's car that principally came in contact with the other was that part to the right of the front's center. Defendant's car was still entirely within the east traffic lane of the highway at the moment of impact.

In response to special issues, the jury found that the defendant: (1) failed to keep a proper lookout; (2) failed to maintain proper control of his vehicle; (3) was driving his vehicle at a speed in excess of that at which a person of ordinary prudence would have driven it in the same or similar circumstances; (4) failed to steer his automobile to the left. They also found that defendant's conduct in each of the first three respects was a proximate cause of the collision; that his conduct in the fourth respect was both negligence and a proximate cause of the collision; and that the collision was not the result of an unavoidable accident. The jury failed to find from a preponderance of the evidence that Allen Williams, driver of the automobile in which the deceased was riding; (1) failed to keep a proper lookout; (2) turned his vehicle to enter the driveway to the store at a time when such movement could be made with safety; (3) failed to give an arm signal continuously during not less than the last 100 feet traveled by his vehicle before turning of his intention to turn left; (4) drove his automobile on his left-hand side of the highway, considering the direction in which he was going, at a time when the section of highway being traveled by him was in a no-passing zone; (5) failed to have his automobile under proper control. They likewise failed to find from a preponderance of the evidence that at the time of the collision the defendant was acting under an emergency. The special issues by which the last-mentioned six matters were submitted were all answered in the negative.

By his first point of error appellant asserts that the trial court erred in permitting plaintiffs to impeach their own witness, Harold C. Price, 'by reading to him and allowing him to read' a written statement he had previously signed. The point is overruled. The witness was properly permitted to read the statement for the purpose of refreshing his memory, he having previously testified during the trial that he did not recall whether or not Mrs. Hennigan was conscious during all of the time he was in her presence after the accident. Latham v. Jordan, Tex.Com.App., 17 S.W.2d 805; Sparks v. Johnson, Tex.Civ.App., 235 S.W. 975; 44 Tex.Jur. 1130, Sec. 140. The written statement was not itself introduced in evidence, and no part of it was read to the jury or to the witness in the presence of the jury. Counsel for plaintiff did in one instance ask the following question: 'You did make this statement at one time that you felt she was conscious?' Objection was sustained, however, before the witness answered, and the jury was instructed by the court to disregard the question. In another instance the following transpired between counsel and the witness, without objection by the defendant: 'Q. To refresh your memory now and see if you said she was conscious al this time and seemed in pain and appeared to be suffering-? A. Well, I don't recall whether she was conscious all the time or not.' These were the only approaches by counsel to divulging to the jury the contents of the written statement. Obviously, they did not amount to impeachment of the witness. We have had recourse to the statement of facts in connection with the matters under discussion and conclude that no error is presented.

While on direct examination by counsel for appellant, N. W. Clark, a state highway patrolman who investigated the collision shortly after it happened, was asked if he could tell from what he found on the ground what position the defendant's car was in at the moment of impact. Having replied in the affirmative, he was asked to give the car's position, and stated:

'It was in the right-hand side of the road in the lane of traffic going north, at about a 45-degree angle.' Objection by counsel for plaintiffs to the effect that the answer constituted a conclusion of the witness was sustained 'as to the latter part of the answer,' and the jury was instructed to disregard that part. This ruling is complained of in appellant's second point of error. The point is overruled. In Union Bus Lines v. Moulder, Tex.Civ.App., 180 S.W.2d 509, 511, it is said to be 'a well-recognized principle that expert opinion testimony is not competent unless it relates to a matter concerning which the expert is shown to have knowledge superior to that possessed by the ordinary juror'; and Koonce v. Perales, Tex.Civ.App., 268 S.W.2d 683 and Texas Law of Evidence (McCormick & Ray) 1st Ed., Sec. 625 are to the same effect. Even conceding, therefore, that Clark had qualified as an expert on wrecks, it was not error to exclude his testimony relative to the angle at which defendant's car was turned at the moment of impact. There was no evidence before the court to indicate that the testimony was based upon anything other than the skid marks made on the pavement by defendant's tires, and, given the direction of these marks, the jury was surely as well qualified as the witness to judge the position of the vehicle. The witness had earlier been permitted to testify that the marks angled toward the center of the highway, and would no doubt have been permitted to give the exact angle of turn if the matter had been pursued, but it was not. Pictures of the skid marks were before the jury, and we are unable to see wherein the testimony of the witness could have added anything to what they disclosed, because the angle of the car could not have been otherwise then the angle of the skid marks. Furthermore, the excluded testimony could have had no bearing upon any issue that was submitted to the jury except the one with reference to whether the defendant turned to his left in order to avoid the collision, and not even the defendant himself claimed that he undertook to turn when there was still a possibility that the collision could have been thereby averted. In any event, therefore, appellant suffered no harm from the exclusion of the testimony.

In passing, we suggest that the foregoing holding should not be construed as an implied holding that reversible error would have been presented from the plaintiffs' viewpoint if the testimony had been permitted to stand. That question is not before us.

In the opening argument to the jury, plaintiffs' attorney, Mr. Fulmer, made the following comments: 'I thought maybe he (the defendant) would change it when he got back up here. And he told Wardlow the same thing and then he gave his devotional to him. He didn't want to kill anybody; well certainly we know he didn't want to kill anybody; we are not charging him with wanting to kill anybody, but she's just as dead, isn't she? Just as if a drunk driver ran over her and killer her, she's still just as dead.' Objection to the effect that there was no evidence to show that the defendant was intoxicated at the time of the collision and that the argument was outside the record and also inflammatory having been made, the trial court instructed the jury as follows: 'Gentlemen of the jury, you heard the testimony and you will be governed entirely by what the testimony shows and what the witnesses testified to. And any statement beyond that by Mr. Fulmer is withdrawn from your consideration and you will not consider it for any purpose. And the court will instruct Mr. Fulmer to stay within the record. Go ahead!' Appellant asserts in his fourth point not only that the court erred in failing to...