Jones v. McCoy, 5224

• Decision Date: 29 March 1973
• Docket Number: No. 5224,5224
• Citation: 493 S.W.2d 891
• Parties: Patricia Ann JONES et al., Appellants, v. Mary Stabler McCOY, Appellee.
• Court: Texas Court of Appeals

Page 891

493 S.W.2d 891

Patricia Ann JONES et al., Appellants, v. Mary Stabler McCOY, Appellee.

No. 5224.

Court of Civil Appeals of Texas,

Waco.

March 29, 1973.

Thelma van Overbeek, Cofer & van Overbeek, Bryan, for appellants.

Lawrence, Thornton, Payne & Watson, Billy Payne, Bryan, for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Jones from take nothing judgment in suit alleging gross negligence against defendant McCoy.

Plaintiffs Jones were guests in an automobile owned and driven by defendant McCoy. The group had gone from Bryan to Ft. Hood, and while returning to Bryan on December 2, 1971, at 6 P.M. the car ran a stop sign near Hearne and turned over, in a one-car accident. Plaintiffs sought recovery for their injuries alleging gross negligence on the part of defendant.

Trial was to a jury which found:

1) Defendant was not operating her car when she was fatigued and tired, and unable to properly operate same under the circumstances.

4) Defendant did not fall asleep at the wheel.

7) Defendant failed to stop before entering the intersection.

8) Such action was not a heedless and reckless disregard of the rights of others affected by it.

(Heedless and reckless disregard, was defined as more than momentary thoughtlessness, inadvertence, or error in judgment. It means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it).

10) Defendant was not driving her automobile at an excessive rate of speed under the facts and circumstances.

22) 23) Plaintiffs' damages were fixed at $1917.55.

Plaintiffs moved the trial court to disregard jury findings 8 and 4 and enter judgment for them non obstante veredicto; and defendant moved for judgment on the verdict.

The trial court entered judgment on the verdict that plaintiffs take nothing.

Plaintiffs appeal on 6 points contending:

1) There is no evidence to support the jury's answer to Issue 4; and such answer is contrary to the great weight of all the evidence.

2) There is no evidence to support the jury's answer to Issue 8; and such answer is contrary to the greater weight of all the evidence.

3) There is no evidence to support the jury's answer to Issue 10.

4) If defendant did not fall asleep at the wheel, her acts demonstrated a reckless and heedless disregard of the rights of others.

Contention 1 asserts there is no evidence or insufficient evidence to support the jury's answer to Issue 4 that defendant did not fall asleep at the wheel.

Issue 1 found the defendant was not operating her car when she was fatigued and tired and unable to properly operate same under the circumstances. Plaintiffs make no complaint at this finding and there is ample evidence to support same. Granting there is no evidence to support the jury's answer to Issue 4, there is no way under the record that defendant's going to sleep could constitute gross negligence as is required for a guest to recover under Article 6701b Vernon's Ann.Tex.Civ.St. Matlock v. Hooge, Tex.Civ.App., NRE, 365 S.W.2d 386; Wood v. Orts, Tex.Civ.App., NWH,182 S.W.2d 139; Napier v. Mooneyham, Tex.Civ.App., Er.Dismd., 94 S.W.2d 564.

Contention 2 asserts there is no evidence or insufficient evidence to support the jury's answer to Issue 8, that defendant...