Keith v. Ledbetter, 7769
| Decision Date | 27 May 1968 |
| Docket Number | No. 7769,7769 |
| Citation | 431 S.W.2d 433 |
| Parties | H. B. KEITH, Appellant, v. Leon LEDBETTER, Appellee. . Amarillo |
| Court | Texas Court of Appeals |
Miller, Sanders, Baker & Miller, W. A. Baker, Amarillo, of counsel, for appellant.
Simpson, Adkins, Fullingim & Hankins, Michael C. Musick, Amarillo, of counsel, for appellee.
This is an action for damages growing out of a collision between a truck owned by appellee, Leon Ledbetter and driven by Clarance Adams, and an automobile driven by appellant, H. B. Keith. The jury found appellee's driver negligent in several respects and convicted appellant of contributory negligence. The trial court entered judgment against the appellant, the plaintiff below, and he appeals.
Prior to the collision, Keith was traveling south on the Canyon Expressway between Amarillo and Canyon. Adams was proceeding in the same direction along the service road that parallels the expressway. Keith pulled ahead of the truck and drove off the exit ramp onto the service road approximately 1/2--3/4 miles ahead of Adams. Both vehicles were travelling in the right-hand lane of the service road. When Keith approached the intersection of the service road and an overpass over the expressway, he stopped prior to turning left. He testified he was not sure he could clear a combine proceeding over the overpass from the east. There were no traffic control signs or lights at this intersection. As Adams approached from Keith's rear, he honked his horn and then moved to the left lane in an attempt to pass Keith's stopped station wagon. Keith then turned into the left lane and was struck by the truck.
The appellant first complains of the trial court's refusing to submit his requested issues on discovered peril. The two drivers were the only eyewitnesses who testified at the trial. It is undisputed that Keith, after pulling ahead of the truck onto the service road, stopped at the road's intersection with the overpass road. His brake lights were on and they were observed by Adams as he approached the Keith car in the right lane. Both agree that Adams blew his horn just prior to the collision. Keith's outside rear view mirror was not properly adjusted and he admitted he did not see the truck until just prior to the collision. Adams testified he was some 150 feet behind Keith's stopped car and he 'wasn't showing no effort to turn'. He then honked his horn and there 'still wasn't any movement, just sitting there'. Adams then pulled over into the left lane to pass Keith. The driver then testified Adams estimated he was from 50 to 100 feet behind Keith when the latter started pulling into the left lane. Keith placed the truck approximately 250--260 feet behind him when he heard the horn and that the truck 'appeared to be in the left-hand lane' at that time. At that point Keith turned into the left lane. Keith testified he moved to the left lane because 'I thought I was farther over in the road then what I actually was'. By that he explained he thought at the time he was across the yellow stripe to his left, but in fact he was not. Adams estimated he was travelling approximately 40 m.p.h. as he moved from the right lane to the left lane and Keith did not challenge this estimated speed.
In a discovered peril case, it is necessary for the plaintiff to prove that the defendant actually discovered and realized his perilous position in time to have avoided the collision by the exercise of ordinary care in the use of all the means in his command . Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901; Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967. It is not enough that the defendant should have discovered or realized the perilous position of the plaintiff. Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162. There must have been a last clear chance to avoid the collision. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422.
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Searcy v. Sellers
...it, but it must be shown that he Actually possessed such knowledge. Turner v. Texas Co., supra; Keith v. Ledbetter, 431 S.W.2d 433 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.). In addition to such proof of discovery and realization of appellee's perilous position, it must be shown that ......
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City of Houston v. Jean
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French v. Brodsky
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