Killen v. Stanford

• Decision Date: 05 March 1943
• Docket Number: No. 13371.,13371.
• Citation: Killen v. Stanford, 170 S.W.2d 792 (Tex. App. 1943)
• Parties: KILLEN v. STANFORD et al.
• Court: Texas Court of Appeals

170 S.W.2d 792

KILLEN v.STANFORD et al.

No. 13371.

Court of Civil Appeals of Texas. Dallas.

March 5, 1943.

Rehearing Denied April 23, 1943.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by John W. Killen against Tom C. Stanford and others to recover for injuries sustained in a collision between automobile operated by plaintiff and one operated by Mrs. Stanford, wherein defendants brought a cross-action.From a judgment for defendants on their cross-action plaintiff appeals.

Affirmed.

McCraw & Holt, of Dallas, for appellant.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellees.

BOND, Chief Justice.

This is an appeal from a judgment entered in favor of appellees, plaintiffs in cross action, against appellant for damages growing out of a collision between an automobile operated by appellant and one operated by Mrs. Stanford on a public highway.Appellant instituted the suit based on numerous alleged acts of negligence on the part of appellees, proximately resulting in the damages severally alleged, all of which were found by the jury against appellant.No point is raised in this appeal touching the verdict, other than the verdict on the cross action in favor of appellees.

In cross action, appellees alleged, in effect, and the jury found, that appellant was guilty of operating his automobile immediately before the collision partly or wholly on the left-hand side of the road, considering the direction he was going, and that such driving on the left-hand side was negligence, proximately resulting in the collision and appellees' damage in the sum of $1,600; accordingly judgment was entered against appellant and in favor of appellees.

Appellant raises a point germane to a proper assignment of error that appellees in cross action, having alleged as negligence that appellant"(f) just before the collision operated his automobile on the wrong or left-hand side of the road in violation of the law of the road," the "law of the road," by reference, became a part of their petition, thereby binding upon appellees, Sec. (A), Art. 801, P.C., providing that operators of any vehicle upon the highway, "wherever practicable" shall travel upon the right-hand side of such highway, and Sec (B), providing that vehicles proceeding in the opposite direction shall pass each other to the right, each giving the other one-half of the road "as nearly as possible," hence no actionable negligence is shown on the part of appellant as basis for the findings of the jury that appellant was guilty of negligence proximately resulting in the collision; especially so, in the light of appellant's pleadings and proof that he was, at the time of the collision, driving his automobile on the right side of the road in a careful and prudent manner, that appellee's wife was operating their automobile on the wrong or left-hand side of the road directly in front of appellant, and that, to avoid a collision which appeared to be imminent, he turned his automobile to the left immediately before the impact of the two automobiles.

We think the statute, supra, clearly implies that a party, perceiving his perilous position, has the inherent right and that it is his duty to use all means at his command to avoid an impending catastrophe; and, in...