Kirkpatrick v. Neal

• Decision Date: 25 June 1941
• Docket Number: No. 3857.,3857.
• Citation: 153 S.W.2d 519
• Parties: KIRKPATRICK v. NEAL et al.
• Court: Texas Court of Appeals

Page 519

153 S.W.2d 519

KIRKPATRICK v. NEAL et al.

No. 3857.

Court of Civil Appeals of Texas. Beaumont.

June 25, 1941.

Rehearing Denied July 9, 1941.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Action by Hazel Neal, a minor, suing by and through her father, Robert Neal, as next friend, and by Robert Neal for himself against Blair Kirkpatrick, a minor, represented by his father, W. W. Kirkpatrick, as guardian ad litem, for injuries sustained by the minor plaintiff while riding as a gratuitous guest in an automobile driven by the minor defendant. Judgment for plaintiffs, and defendant appeals.

Reformed and affirmed as reformed.

Eskridge & Groce, of San Antonio, and Vinson, Elkins, Weems & Francis, of Houston, for appellant.

S. M. Helm, Allen, Helm & Jacobs, A. C. Buckner, and Arthur P. Terrell, all of Houston, for appellees.

O'QUINN, Justice.

This is an appeal by Blair Kirkpatrick, a minor (represented by his father, W. W. Kirkpatrick, as guardian ad litem) from a judgment of the 127th district court of Harris County, Texas, in favor of Miss Hazel Neal, a minor (suing by and through her father, Robert Neal, as next friend, and Robert Neal for himself), in the sum of (after remittitur) $21,123.95, on account of personal injuries sustained by Miss Neal on June 17, 1939, while riding as a gratuitous guest (within the purview of the Texas Guest Statute) of appellant, Blair Kirkpatrick, in an automobile driven by him, owned by his father, W. W. Kirkpatrick. The amounts of damage found by the jury were: Miss Neal, $18,800; Robert Neal, her father, $5,000; and hospital and medical charges, $1,025, but of this remittitur was made of $3,500 from the amount awarded Robert Neal, the father, and $201.05 from the hospital and medical charges, leaving the sum of $21,123.95 recovered in the judgment. Motion for a new trial was overruled, and this appeal is from that order.

The case was tried to a jury upon special issues, in answer to which the jury found:

(1) That appellant was driving his automobile at a speed in excess of 45 miles per hour prior to the accident;

(2) That he was driving his automobile at a speed which was dangerous under the circumstances;

(3) That he failed to keep a reasonable lookout;

(4) That he failed to keep his automobile under proper control;

(5) That he failed to reduce the speed of the automobile;

(6) That he failed to stop the automobile;

(7) That he failed to apply the brakes on the automobile.

The jury further found (in answer to separate issues) that each of the above mentioned acts or omissions was done by appellant "in heedless and reckless disregard" of the rights of the minor plaintiff Hazel Neal, and that each of said acts or omissions of appellant was a proximate cause of the injuries sustained by appellee Hazel Neal in the collision between the automobile in which she was riding (as the unpaid guest of appellant Blair Kirkpatrick) and a bridge on the highway over which they were driving. The jury further found that the collision between the automobile and the bridge was not the result of an unavoidable accident, and answered all defensive issues submitted in favor of appellees.

Appellant's first seven propositions complain that the evidence disclosed by the record was insufficient to raise a jury issue as to whether appellant, Blair Kirkpatrick, in operating the automobile at the time of the collision, under the circumstances, was guilty of heedless and reckless disregard of the safety and rights of appellee, Hazel Neal, in respect to (a) the speed at which he was driving his automobile, (b) his failure to keep a reasonable lookout, (c) his failure to keep his automobile under proper control, (d) his failure to reduce the speed of the automobile so as to avoid the collision, (e) his failure to stop the automobile so as to avoid the collision, and (f) his failure to apply the brakes on the automobile within such time and at such distance as to avoid the collision, and therefore such issues should not have been submitted to the jury, and that the answers of the jury finding these acts to have been committed by appellant in heedless and reckless disregard of the rights of appellee Hazel Neal should be set aside.

The record reflects that on June 17, 1939, appellee Hazel Neal, the daughter of Robert Neal, seventeen years of age, and who resided with her parents in the city of Houston, Texas, was riding in a Ford Coupe with Blair Kirkpatrick, (son of W. W. Kirkpatrick) about nineteen years of age, as the guest of Blair Kirkpatrick. There were two other persons riding in the automobile as guests of Blair Kirkpatrick, M. C. Vogelsang, a young man friend of Blair Kirkpatrick, some nineteen years of age, and a girl named Helen Dardeux. They left Houston at between four and five o'clock on the evening of June 17, 1939, to go to a barbecue at Bryan Beach some two miles south of the town of Freeport. This was about sixty or sixty-five miles from Houston. Blair Kirkpatrick drove the automobile, and Miss Neal sat next to him, and Vogelsang sat next to Miss Neal, and Miss Dardeux sat in Vogelsang's lap, it being a one-seated car. In going from Freeport down to the beach where the barbecue was being served, there was a narrow bridge over the Intercostal Canal over which they had to pass. The bridge was described as on a dangerous curve, and as narrow and dangerous. Vogelsang testified that his father told him about the bridge and cautioned him about it before they left Houston, and that he, M. C. Vogelsang, told Blair Kirkpatrick what his father had said about the bridge before they got to the bridge. Blair Kirkpatrick testified that "it was a dangerous bridge." When they started back to Houston that night Vogelsang warned Kirkpatrick to watch out for the bridge. The accident happened at about 10 p. m. There was a large lighted lantern hanging on an arm upright by the side of the bridge at the time of and just before the accident. It was testified that this could be seen from one-half to three-quarters of a mile. It was open coast country. This light could be easily seen before one reached the curve in the road. Vogelsang testified that the light was burning and could be plainly seen that night at the time of the accident. While these young people were at Bryan Beach, Blair Kirkpatrick and his date, Hazel Neal, became separated for a few minutes from Vogelsang and his date, Miss Helen Dardeux, and Miss Neal testified that Kirkpatrick asked her to marry him, which proposal she rejected. She said this offended Kirkpatrick, he saying to her "well hell come on then," and that she and Kirkpatrick went and got in the automobile, and before Vogelsang and Miss Dardeux could get in he started driving swiftly away toward Freeport, toward home; that he stopped and they got in the car. When the young people started back, Vogelsang's parents cautioned them about the bridge, and that he, Vogelsang, when he got in the car, told Blair, appellee, "Blair, you better take it easy, remember that bridge." Kirkpatrick denied that he proposed marriage to Miss Neal, and also denied that he was offended at her, and also denied that Vogelsang cautioned him about the bridge. Miss Neal testified that she asked Kirkpatrick to "slow down," but that he did not say anything, but kept driving fast not even looking at her, that he appeared to be angry at her; that she pleaded with him to stop but that he did not stop or slow down, but kept on driving at the same speed. Vogelsang testified that his father had warned him about the bridge before they left Houston, and that he told Kirkpatrick about it, and that when they got to the bridge going down to Bryan Beach that he pointed out the bridge to Kirkpatrick as the dangerous bridge his father had warned about, that was in the daytime. Miss Neal testified that on the return trip Kirkpatrick drove the car at the rate of 75 to 80 miles an hour, that in going down they traveled about 60 to 65 miles an hour. The car still traveling at the rate shown collided with the railing, steel cable and wooden uprights of the bridge with such force that the car climbed up one of the steel supporting cables a distance of 18 or 20 feet, bending the steel rod at that distance from the floor of the bridge, and the striking force of the car against one of the wooden uprights which measured 14 × 14 inches, was such as that it was broken in two, and another one was cracked. After meeting with these obstacles, the car still had sufficient propelling force that it turned over, and hurtled through the air landing upside down on the floor of the bridge with its wheels straight up on the opposite end of the bridge. Miss Dardeux was killed, Miss Neal seriously injured, and Vogelsang was also injured.

As shown above, this is an action for damages under the guest statute, Article 6701b, Vernon's Annotated Civil Statutes of Texas. It reads:

"Art. 6701b. Sec. 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.

"Sec. 2. This Act shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier, or by such owner or operator."

There is no contention that the accident was intentionally caused. The contention is that the appellant, Blair Kirkpatrick, in his driving of the automobile was heedless and reckless in his management of same. That his driving the automobile on and over the narrow and dangerous...