Kainer v. Walker
| Decision Date | 22 February 1963 |
| Docket Number | No. 16382,16382 |
| Citation | 366 S.W.2d 249 |
| Parties | Milton KAINER, Individually and d/b/a Kainer Truck Lines et al., Appellants, v. James W. WALKER, Appellee. |
| Court | Texas Court of Appeals |
Bryan & Patton, Chilton Bryan, and Julietta Jarvis, Houston, for appellants.
Hill, Brown, Kronzer, Abraham, Watkins & Steely, Robert L. Steely and W. James Kronzer, Houston, for appellee.
This appeal resulted from a judgment for personal injury damages in behalf of James W. Walker, plaintiff, against Milton Kainer and the driver of his truck, one Robert Miles. For convenience we will hereinafter speak of Kainer as the defendant, with the observe to understand that both the defendants have appealed. The complaints of the two defendants are common and a decision thereof as to one would be the same as applied to the other.
The judgment is affirmed.
Plaintiff's injuries flowed from a vehicular collision in the City of Houston which occurred shortly before dusk when it was misting rain and when the streets were wet or damp. Point of the collision was the intersection of Capitol Avenue and Wayside Drive, the former being a street on which vehicular traffic flows both east and west, with traffic on Wayside flowing in a southerly direction only. Flow of the traffic was controlled by automatic signalcontrol lights. The same was true as to traffic at the intersection one block north, which was the intersection of Wayside with Harrisburg.
There is no question but that shortly prior to the time of the collision Robert Miles driving defendant's truck, started up at the Harrisburg-Wayside intersection, upon the change of traffic lights thereat which permitted westbound traffic to make a left turn to proceed south on Wayside, and turned and drove in a southerly direction toward and into the intersection of Capitol and Wayside. There is furthermore no question but that shortly prior to the time of the collision plaintiff was stopped at the east side of the Capitol-Wayside intersection, with his automobile pointing toward the west, and that upon a change of traffic lights thereat which permitted such, plaintiff started his automobile and drove in a westerly direction on Capitol Avenue. Within the intersection the vehicles collided, the left front of defendant's truck coming into collision with the right rear quarter of plaintiff's passenger vehicle.
There seems to be no question but that there was a change of signal-control lights at the Capitol-Wayside intersection immediately prior to the time of the collision which indicated propriety for the flow through the intersection of traffic proceeding both east and west. There would seem to be little question but that the change of lights embraced such a change in condition that the red and 'stop' light was to be observed by vehicle operators traveling in a southerly direction on Wayside, for there was nothing in the record indicating a malfunction of light controls. However, defendant's driver contended that when he entered the intersection the signal showed green, or 'go', for southbound traffic.
Plaintiff started up from a position which was to the right of the center of Capitol, with space to his left for another vehicle between his own and the center of Capitol Avenue. Defendant's truck was proceeding in the lane next to the center of Wayside, immediately to the right thereof. Plaintiff's automobile was more than one-half way across the intersection when the collision occurred.
Issues upon proper lookout, failure to stop, and failure to yield right-of-way were clearly raised as applied to the acts and omissions of defendant. Raised, or in any event submitted, were contributory negligence issues upon plaintiff's lookout, failure to sound horn, driving into the intersection on a red light, speed, and failure to apply brakes. All these contributory negligence issues were answered in favor of plaintiff and against the defendant.
One main issue was submitted on the matter of defendant's negligence. It read: 'Do you find from a preponderance of the evidence that at the time and on the occasion of the collision of December 31, 1959, that the driver of the Chevrolet truck failed to exercise that degree of care which would have been exercised by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances?' The jury found for plaintiff on this and the accompanying issue on proximate cause, and the judgment for the plaintiff was founded thereon.
In instances of judgment for the defendant on contributory negligence where the trial court has submitted a general issue on contributory negligence in tort cases, and where the defendant has alleged contributory negligence generally rather than specifically without exception thereto having been taken by the plaintiff, no reversible error has resulted of which plaintiff may complain even though he objects to the submission of the issue on the ground that it constituted a general charge or embraced a 'global submission'. The cases usually concede that the objection would be good had such an exception been filed and urged. Coleman County Electric Co-op. v. Agnew, 1954 (Tex.Civ.App., Eastland), 265 S.W.2d 911, affirmed by the Supreme Court in Agnew v. Coleman County Electric Cooperative at 153 Tex. 587, 592, 272 S.W.2d 877; Coleman v. Texas & Pac. Ry. Co., 1951 (Tex.Civ.App., Dallas), 241 S.W.2d 308, error refused; and cases cited as authority for the holding.
There seem to have been no opinions prior to this time in which the analogous question posed by the instant appeal has been passed upon, although it would be remarkably similar to that stated in the preceding paragraph. In this instance it was the plaintiff who alleged generally primary actionable negligence on the part of the defendant upon which plaintiff's right of recovery was grounded, and it was the defendant who failed to except thereto because of the generality. Defendant did object to the manner of submission because the issue constituted a global submission of general negligence in a special issue charge. The objection was overruled.
We confess that the question has given us concern. Usually when such is the state of the pleadings at time the court's charge is prepared a plaintiff will prefer to have separate issues, by which his theory of the case is submitted, inquire about whether those acts and omissions upon which a dispute has arisen constituted negligence and proximate cause. The defendant contends that such should have been the manner of submission in the instant case, and that reversible error lies in the failure of the trial court to adopt this method. Boldly, plaintiff's counsel agreed that the court could submit the case for the plaintiff by the manner which was adopted.
We have concluded that no reversible error appears. We believe that every reason considered and deemed logical in the cases by which it was ultimately concluded that a general issue submitting the question of a plaintiff's contributory negligence was not improper or erroneous, and if found in his behalf would support a judgment for the defendant, would have the same application to a case where the general issue submitted the question of the defendant's primary actionable negligence. Defendant's points of error by which its complaint is presented are overruled.
Complaining of the answer of the jury to the issue and its companion issue on proximate cause defendant contends that there was no evidence to support the answers returned, or even the submission of the questions, and also that the answers of the jury were against the great weight and preponderance of the evidence and the product of something other than reason. We have stated the general nature of the manner by which the collision occurred, and the acts and omissions on the part of defendant's driver. Clearly they could have amounted to negligence on the part of the driver, and by and through the driver to negligence on the part of the defendant. Evidence adduced upon the trial raised the issue or issues and the answers of the jury found adequate support in the evidence. Defendant's points of error pertaining thereto are overruled.
Two specially requested issues of the defendant were frfused by the trial court. These issues were:
Special Issue No. I. 'Do you find from a preponderance of the evidence that James Walker failed to ascertain that the intersection of Wayside and Capitol Avenue was clear of motor traffic before leaving his stopped position on Capitol Avenue on the east side of Wayside Drive immediately before the collision in question?'
Special Issue No. L. 'Do you find from a preponderance of the evidence that James Walker failed to ascertain that it was safe for him to drive into and through the intersection of Capitol Avenue and Wayside Drive before proceeding into such intersection immediately before the collision in question?'
Companion issues to the foregoing, upon the matter of inquiry as to negligence and proximate cause, were likewise refused.
We are of the opinion, and so hold, that the trial court did not err in refusing these specially requested issues. The inquiries therein posed other and various phases or different shades of the issue which...
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