Kimbriel Produce Co. v. Mayo, 11403.

• Decision Date: 19 April 1944
• Docket Number: No. 11403.,11403.
• Parties: KIMBRIEL PRODUCE CO., Inc., v. MAYO et al.
• Court: Texas Court of Appeals

Page 504

180 S.W.2d 504

KIMBRIEL PRODUCE CO., Inc., v. MAYO et al.

No. 11403.

Court of Civil Appeals of Texas. San Antonio.

April 19, 1944.

Appeal from District Court, Bexar County; John F. Onion, Judge.

Action by Tracy L. Mayo and wife, Lillian Mayo, against Kimbriel Produce Company, Inc., and Joe Amberson, doing business as Union Bus Line, for personal injuries sustained by bus passengers in a collision between a bus and a truck. The trial court rendered judgment upon a special issue jury verdict for plaintiffs as against both defendants jointly and severally, and the defendant Kimbriel Produce Company appeals.

Affirmed.

Eskridge & Groce and Walter Groce, all of San Antonio, Harry Schulz, of George West, and T. P. Hull, of San Antonio, for appellant.

Sid L. Hardin, of Edinburg, R. E. Schneider, of George West, and Nat L. Hardy, and Johnson & Rogers, all of San Antonio, for appellees.

NORVELL, Justice.

Tracy L. Mayo and wife, Lillian Mayo, were passengers in a common carrier bus operated by Joe Amberson, d. b. a. Union Bus Lines. This bus collided with a truck owned by Kimbriel Produce Company, Inc., during the nighttime (early morning of July 11, 1942) at a place near the north city limits of the town of Three Rivers, Live Oak County, Texas.

The trial court rendered judgment upon a special issue jury verdict in favor of Tracy L. Mayo for $5,680 ($4,680 for injuries sustained by Tracy Mayo, and $1,000 for injuries sustained by his wife) and against Joe Amberson and Kimbriel Produce Company, Inc., jointly and severally. In accordance with the provisions of Article 2212, Vernon's Ann.Civ.Stats., contribution between Amberson and Kimbriel Produce Company, Inc., as tort-feasors, was provided for in the judgment.

Kimbriel Produce Company (hereinafter referred to as Kimbriel) has appealed. Tracy L. Mayo and Joe Amberson are appellees. Amberson did not appeal from Mayo's judgment against him.

Kimbriel, by six points of error, asserts (a) that there is no evidence that the alleged acts or omissions of its truck driver were negligent in nature or proximately caused the injuries of Mayo and his wife; (b) that Kimbriel, under the facts disclosed by the record, was entitled to a judgment of full indemnity against Amberson for any and all sums it might be forced to pay to Mayo by reason of the judgment rendered, and (c) that the trial court erred in failing to submit certain requested special issues embracing the doctrine of discovered peril.

We first consider the contention that there is no competent evidence supporting a recovery by Mayo against the appellant, Kimbriel. It is argued that the driver of the Kimbriel truck could not reasonably foresee that his actions immediately prior to the collision would result in harm to any one.

The collision occurred at the intersection of U. S. Highway No. 281 and State Highway No. 72. In this particular locality, Highway 281 runs approximately north and south. The right of way is a hundred and twenty feet in width and along the approximate center line thereof a twenty-foot-wide concrete slab is laid, which constitutes the hard surface or wearing portion of the highway. Highway 72 is an unpaved road. It approaches and runs into Highway 281 from the northeast. The angles formed by the intersections of the center lines of the two highways are approximately forty-five degrees and one hundred and thirty-five degrees, the acute angle lying north of the obtuse angle.

The embankment or fill of Highway 72 is widened to some extent so as to provide two approaches onto Highway 281; that is, one approach turns in a northerly direction onto Highway 281, leading toward San Antonio, while the other approach turns in a southerly direction onto Highway 281, leading toward the town of Three Rivers. The position of these approaches is described as a "Y" by certain witnesses. The soil or earth composing the travelled portion of Highway 72, in the vicinity of the intersection, is described as being sandy. It seems that the south prong of the Y leading toward Three Rivers was much more clearly defined by travel than was the north prong. There is some evidence that the north prong was wet or muddy. It was, however, passable.

It appears that both the driver of the truck and the driver of the bus were familiar with the particular intersection involved. Highway 281 for some distance north of the intersection curved somewhat and the grade inclined toward the south. A stop sign was located on the north side of the travelled portion of Highway 72, indicating that the intersecting Highway 281 was a through highway.

Without at present discussing questions of negligence or proximate cause, we make the following statement of the movements of vehicles involved and the actions of the drivers thereof as gathered from the undisputed evidence in the case and from the jury's findings based upon disputed evidence.

The Kimbriel truck consisted of a tractor and trailer about forty feet in length and with its load weighed approximately 34,000 pounds. The truck was proceeding in a southwesterly direction along Highway 72. Upon approaching the intersection with Highway 281, the truck driver did not pull up at the stop sign but proceeded onto the paved portion of Highway 281 without stopping. He took the south prong of the Y above mentioned which turned toward Three Rivers. However, he intended to go to San Antonio, and attempted to negotiate a turn in excess of 135 degrees upon Highway 281, in order to head the vehicle toward said city. This threw the tractor and trailer in a V position similar to that of the blade and handle of a partially opened jackknife, and hence described as a jackknife position by various witnesses. No part of the truck extended onto the west one-half of the concrete slab at the time of the collision, so it is apparent that had the driver of the bus, travelling in a southerly direction along Highway 281 kept to his right-hand side of the road, the bus could have passed the truck with safety and the collision would not have occurred.

However, the bus did not keep to the right, but, on the contrary, crossed the center line of the pavement to the left and thus collided with the trailer upon the east side of the eastern edge of the paved portion of Highway 281. At the time of the impact the tractor of the truck seems to have been headed in a northerly direction, while the trailer was in an east-west position. The front of the bus hit the right-hand side of the trailer, after having passed the tractor upon the bus driver's left.

As to negligence and proximate cause, the jury found that the driver of the truck was negligent in (a) failing to keep a lookout for approaching traffic, (b) in driving upon the paved portion of Highway 281, (c) in failing to stop at the stop sign, and (d) in failing to use the right or north prong of the Y leading into Highway 281 from Highway 72. Each of these acts or omissions was found to be a proximate cause of the collision. None of them was found to be the sole proximate cause thereof.

The jury found that the driver of the bus was negligent (a) in failing "to keep such a lookout at the time and place in question as a person of ordinary prudence would have kept under the same or similar circumstances," (b) in failing to have said bus under proper control, and (c) in driving the bus to the left of the center line of the highway. Each of these acts or omissions was found to be a proximate cause of the collision. None of them was found to be the sole proximate cause thereof.

"In this state it is now a settled doctrine that anticipation of consequences is a necessary element in determining not only whether a particular act or omission is actionably negligent, but also whether the injury complained of is proximately caused by such act or omission. Seale v. [Gulf, C. & S. F.] Railway, 65 Tex. 274, 57 Am.Rep. 602; [Texas & P.] Railway [Co.] v. Bigham, 90 Tex. 223, 38 S.W. 162; [Gulf, C. & S. F.] Railway [Co.] v. Bennett, 110 Tex. [262], 270, 219 S.W. 197; [San Antonio & A. P.] Railway [Co.] v. Behne, Tex.Com.App., 231 S.W. 354. This doctrine is the result of an effort by the courts to avoid as far as possible the metaphysical and philosophical niceties in the age-old discussion of causation, and to lay down a rule of general application which will, as nearly as may be done by a general rule, apply a practical test, the test of common experience, to human conduct when determining legal rights and legal liability. Actual anticipation is...