Kimble v. Comet Motor Freight Lines

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Kimble v. Comet Motor Freight Lines, 169 S.W.2d 760 (Tex. App. 1943)
• Decision Date: 05 March 1943
• Docket Number: No. 2333.,2333.
• Parties: KIMBLE et ux. v. COMET MOTOR FREIGHT LINES.

169 S.W.2d 760

KIMBLE et ux. v. COMET MOTOR FREIGHT LINES.

No. 2333.

Court of Civil Appeals of Texas. Eastland.

March 5, 1943.

Appeal from District Court, Brown County; A. O. Newman, Judge.

Death action by B. L. Kimble and wife against Comet Motor Freight Lines for death of plaintiffs' son in an automobile collision. Defendant's request for an instructed verdict was denied, and verdict was for plaintiffs. From a judgment for defendant, notwithstanding the verdict, plaintiffs appeal.

Affirmed.

Callaway & Callaway, and Levie Old, all of Brownwood, for appellants.

Blanton & Blanton, of Albany, and Woodruff & Holloway, of Brownwood, for appellee.

LESLIE, Chief Justice.

B. L. Kimble et ux. instituted this suit against the Comet Motor Freight Lines, a private corporation, to recover damages resulting to them by reason of their son's death, alleged to have been proximately caused by the negligence of the defendant's truck driver, Chester Lee Lewis. Discovered peril was also alleged as a ground of recovery.

The defendant answered by general demurrer, special exceptions and alleged contributory negligence.

The trial was before the court and jury, and several special issues were submitted. Some were not answered when the verdict was returned.

Those unanswered and pertaining to liability on grounds of discovered peril furnish the basis of this appeal.

Near Cross Plains, Texas, the plaintiffs' Chevrolet car, southbound on the paved highway between Cisco and Brownwood and driven by their son, Le Roy Kimble, collided with defendant's northbound truck driven by Chester Lee Lewis. The accident occurred about midnight and near the top of a north-south incline in the public road.

In answer to Special Issue 1, the jury found that "immediately prior to the collision * * * Le Roy Kimble was in a position of peril", and in answer to Issue 2, that "immediately prior to the collision in question, the driver of the defendant's truck discovered that Le Roy Kimble was in a position of peril."

They did not answer Issue 3 as to whether the defendant's truck driver discovered Kimble's peril "within such time and distance as, that by the exercise of ordinary care in the use of all the means at his command, consistent with the safety of himself and his truck, he could have avoided the collision." (Italics ours.) Having made no finding on the vital question of time, naturally the jury did not then answer Issue 4, determining whether the driver of the truck failed thereafter to "exercise all such means at his command, consistent with the safety of himself and his truck, in order to avoid collision." Likewise, having failed to answer Issue 4, the jury did not answer the fifth issue, calling for a finding of whether or not "the failure of the driver of defendant's truck to exercise all such means at his command, consistent with the safety of himself and his truck, to have avoided the collision * * * was negligence * * *."

Logically the jury also omitted any answer to the question inquiring if such negligence was a proximate cause of the collision.

On the issue of contributory negligence, the jury found, in response to Special Issue No. 7, "that at the time of and immediately before the collision in question Le Roy Kimble was operating the car driven by him all or partly upon his lefthand side of the center of the highway in the direction in which he was traveling when such highway was not clear and unobstructed for a distance of at least fifty yards ahead"; and in answer to Special Issue 8, "that such operation by Le Roy Kimble of the car driven by him", was a proximate cause of said collision.

In answer to Special Issue No. 9, the jury found "that immediately prior to the collision in question, taking into consideration the conditions existing at the time of said collision, Le Roy Kimble failed to keep a proper lookout ahead for other vehicles approaching him upon the highway, including the defendant's truck, as a person of ordinary prudence would have kept, under the same or similar circumstances"; and in answer to Special Issue No. 10, "that the failure of Le Roy Kimble to keep such proper lookout * * * was negligence * * *"; and in answer to Issue 11, that such negligence "was a proximate cause of the collision in question."

Further, and in answer to requested issue No. 4, the jury found "that Le Roy Kimble, the driver of the Chevrolet car, failed to yield one-half of the roadway to Chester Lewis, the driver of the truck, at and prior to the collision in question"; and in answer to requested Special Issue No. 5, "that failure of Le Roy Kimble to yield one-half of the roadway to Chester Lewis was a proximate cause, or contributing cause, of the...