John F. Buckner & Sons v. Allen
| Decision Date | 22 February 1956 |
| Docket Number | No. 10344,10344 |
| Citation | 289 S.W.2d 387 |
| Court | Texas Court of Appeals |
| Parties | JOHN F. BUCKNER & SONS et al., Appellants, v. Mrs. Ruth ALLEN, Appellee. |
Sutton, Steib & Barr, San Angelo, for appellants.
Snodgrass & Smith, San Angelo, for appellee.
Appellee, Mrs. Ruth Allen, recovered a judgment against appellants, John F. Buckner & Sons, for damages for personal injuries and for property damage sustained by her as the result of an automobile and truck collision. The collision occurred on a section of highway under construction in Tom Green County. Appellants were the contractors with the State and Hunter Strain and L & S Contractors were subcontractors. At the close of the evidence appellee took a nonsuit against the subcontractors.
On a former appeal this Court affirmed an order overruling appellants' plea of privilege. 272 S.W.2d 929, er. dism.
During the afternoon of September 2, 1953, appellee was returning from San Angelo to her home in Sterling City and was riding in her own car which was driven by Mrs. Jess Martin. A portion of the highway between the two towns and between San Angelo and Carlsbad in Tom Green County was under construction. After leaving San Angelo appellee and her driver proceeded along the highway until they reached a detour. The parties traveled this detour until they reached a barricade across the detour and then turned left up a prepared incline on to the main construction. The surface of this construction was slick by reason of a recent application of hot oil followed by rain. As the car reached the surface it skidded and continued to slide or spin until it collided with a truck approaching from the opposite direction. Appellee was injured and was removed by ambulance to a hospital in Sterling City where she remained 65 days. Also her automobile was severely damaged.
The judgment against appellants was rendered on a jury's verdict.
We will here disregard conflicts in the evidence and consider that which supports the jury's answers.
Both Mrs. Martin and appellee were experienced drivers and as they traveled along the detour the car was well under control The day before they had traveled this road coming to San Angelo and the barricade was not there. As they reached the barricade the speed of the car was slowed and was driven up the incline at about 10 or 12 miles per hour. As they got on the surface of the construction the car skidded and went into a spin and, although she tried, Mrs. Martin was unable to control the car but it continued to skid or spin until it collided with the truck. Oil had been applied to the surface of the construction by Hunter Strain on the afternoon the accident occurred, it had rained on it and at the time it was raining. As appellee and her driver approached the barricade they saw the truck and could see he surface of the construction but could not determine that oil was on it. There was no warning at the barricade warning that the road was slick or that oil had been applied and at the time the parties did not see a flagman at the barricade or elsewhere. There is evidence that one was sitting in a pickup truck beyond the barricade but Mrs. Martin or appellee did not see him.
Appellee remained in the hospital from September 2, 1953 to November 5, 1953. She was confined to bed all of that time except the last 3 or 4 days when she was up and on crutches. She walked with crutches until March, 1954, and used them some until April. From examinations and x-rays it was determined that she sustained three fractures of her pelvis, possibly some broken ribs and other injuries which she described as follows:
'I was knocked, out, and I just don't remember much about it until the pain began to come, and it was all in my side, and they had to strap me up and strap my hips, and they bound my foot and my head, had a knot larger than a hen egg, whole face was black, limbs black clear to my foot; this arm had a knot on it; my lower lip was torn loose here; my face was blackened.'
During her stay in the hospital appellee suffered intense pain, had a special nurse, was attended by doctors, was given treatments and medicines and had x-rays. Because of appellee's long confinement to bed her bladder became irritated and she was treated for this and kidney infection.
At the time of the trial appellee's fractures had not entirely healed and she will incur future medical expense. Also her kidney trouble had not completely cleared and after her release from the hospital she was hospitalized for treatment of her bladder and kidney due to the accident.
Prior to the accident the market value of appellee's automobile was $1700 and afterwards it was $300. It sold for $50.
All hospital, doctors', nurses', x-ray and medical charges were necessary and reasonable.
At the time of the accident appellee was 76 years of age and though she had some disabilities she looked after and managed her two ranches, drove her car, did her own housework and was generally active. Since leaving the hospital she is not able to drive her car, can do very little of her housework, has a maid that lives with her and has to leave the management of her ranches to others. Prior to the accident appellee had suffered an injury to her back when she fell from a pickup truck, had kidney trouble and had diabetes.
Prior to the trial appellee submitted herself to examination by a doctor representing defendants. However this doctor did not testify and the result of his examination was not before the jury.
Appellee alleged that the collision occurred on a section of highway under construction; that appellants were the general contractors under a contract with the State which provided:
'* * * that the safety of the public is of prime importance and the direct responsibility of the Contractor; that the Contractor shall maintain the surfacing of highway under construction and open to the traveling public in such condition that the public can travel over the same in safety; that Contractor furnish and maintain barricades, danger, warning signs and other incidentals necessary for the safety of the traffic; that the Contractor maintain the roadway in good passable condition; that the Contractor provide and maintain flagmen at the points required to provide for the safety of public travel.'
Appellee further alleged that:
She alleged that each of the above acts or omissions was negligence and a proximate cause of her injuries and damage.
The jury found that appellants were negligent; that such negligence was a proximate cause of the collision; that appellee and her driver were not negligent and that the accident was not the result of an unavoidable accident.
We will not set out appellants' 51 points but will consider and dispose of each.
The jury assessed appellee's damages in the following amounts:
Damage to automobile $ 1,400.00
Necessary ambulance expenses 17.00
Necessary nurse expenses 521.25
Necessary hospital expenses incurred 1,434.65
Necessary expenses for physicians 887.00
Probable future medical and
hospital expenses 300.00
Damages resulting from physical
injuries 17,083.00
There appears in the transcript before us 'First Draft' of the court's charge which contained issue 68. This issue in effect inquired what amount of money would compensate appellee for the injuries sustained by her. Accompanying the issue there was an instruction advising the jury what items to consider in arriving at said amount of money. Earning capacity was not used. Appellants objected to the instruction:
'Said issue improperly fails to make any provision for and does not instruct the Jury to exclude from consideration any impairment of earning capacity from any prior injury or disability as applied to the facts of this case, and as to the facts of disability, if any, resulting from the collision in question.'
The charge appears to have been amended and the instruction accompanying issue 68 as given to the jury contained the following:
'* * * in estimating such damages and expenses, if any, you must exclude from your estimate any compensation for physical impairment or any impairment of earning capacity, if any, suffering, if any, of the plaintiff, or ambulance services, if any, medical, surgical, hospital or nurses services, if any, which may be due solely or partly to ailments or physical conditions, if any, which she may have had before the accident in question; but if you find from the evidence that the injuries, if any, have aggravated any ailments or physical conditions, if any, which plaintiff may have had prior to the time of the alleged injuries, then you may consider in your estimate such aggravation, if any, * * *.'
The instruction given also told the jury 'You may consider only the present value to the plaintiff of such physical capacity or ability as she may have lost as a result of her injuries.'
Appellants here complain of the instruction because: (1) the jury was not required to exclude loss of physical ability to earn, but were permitted to compensate appellee for future pain,...
To continue reading
Request your trial
-
Huddell v. Levin
...with plaintiff's total losses, not what might have happened to those earnings had he not been injured. See John F. Buckner & Sons v. Allen, 289 S.W.2d 387, 394 (Tex.Civ.App. 1956).33 This court does not believe that such a resolution is inequitable. It is clear that injured plaintiffs are n......
-
Strakos v. Gehring
...public within the area under construction. See John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929, wr. dism. on second appeal, 289 S.W.2d 387, no wr. hist.; City of Austin v. Schmedes, Tex.Civ.App., 270 S.W.2d 442, reversed in part, 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680; ......
-
Bostrom v. Seguros Tepeyac, SA
...omissions to act as well as on acts of commission. * * *" The above quotation from 30 Am.Jur. also appears in John F. Buckner & Sons v. Allen, Tex.Civ.App.1956, 289 S.W.2d 387, 396, no writ The question of liability for nonfeasance negligence was not as clear cut in the Montgomery Ward & Co......
-
Bristol-Myers Co. v. Gonzales
...on the cost of producing income. We find no cases which have discussed this assertion before, but the decision of John F. Buckner and Sons v. Allen, 289 S.W.2d 387 (Tex.Civ.App., Austin 1956, no writ) is helpful. In Buckner, the appellant complained of the failure to include the amount of m......