Klein v. Brown-Griffin Texaco Distributors, Inc.

• Decision Date: 21 February 1978
• Docket Number: BROWN-GRIFFIN,No. 8831,8831
• Citation: 562 S.W.2d 910
• Parties: Ilse KLEIN et vir., Elgin Klein, Appellants, v.TEXACO DISTRIBUTORS, INC., B. R. Griffin and Joe Dale Clary, Appellees.
• Court: Texas Court of Appeals

Page 910

562 S.W.2d 910

Ilse KLEIN et vir., Elgin Klein, Appellants, v. BROWN-GRIFFIN TEXACO DISTRIBUTORS, INC., B. R. Griffin and Joe Dale Clary, Appellees.

No. 8831.

Court of Civil Appeals of Texas, Amarillo.

Feb. 21, 1978.

Rehearing Denied March 20, 1978.

Mark Smith & Associates, Mark Smith, Lubbock, for appellants.

Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellees.

DODSON, Justice.

This is a common law negligence action for personal injury damages. Ilse Klein and husband Elgin Klein, plaintiffs-appellants, brought suit against Brown-Griffin Texaco Distributors, Inc., and Joe Dale Clary, defendants-appellees. The Kleins alleged that Mrs. Klein sustained personal injuries when her car was struck from the rear by a truck owned by the defendant corporation and driven by defendant Clary. The case was tried to a jury which found neither Mrs. Klein nor the defendants guilty of any negligence. On the jury's verdict, the trial court entered a take-nothing judgment. From this adverse judgment, the Kleins appeal to this court. We affirm.

The collision occurred on the afternoon of May 9, 1972, as Mrs. Klein and defendant Clary were westbound on 34th Street in Lubbock, Texas. Mrs. Klein was in the outside (right) traffic lane traveling about 15 m. p. h. two or three car lengths behind another vehicle that had been signaling a right turn for several blocks with several opportunities to turn. Defendant Clary was traveling about 20 to 25 m. p. h. in the outside (right) traffic lane behind the Klein vehicle. The lead car's speed decreased almost to a stop as it very slowly made a right turn. The lead car's action surprised Mrs. Klein and she stopped her vehicle as quickly as she could to avoid colliding with it. Clary testified he saw the car in front of Mrs. Klein begin to turn and the brake lights on Mrs. Klein's car came on. He immediately applied his brakes and tried to stop. The truck skidded into the rear of Mrs. Klein's car and moved it a few feet after impact.

The jury did not find Clary negligent in failing to turn left, failing to keep a proper lookout or following too closely. Clary's failure to turn left was the only causation issue answered favorably to the Kleins. By eight points of error, they complain of the absence of favorable findings on the other issues.

The Kleins contend in point of error one "the evidence proves conclusively as a matter of law that defendant Clary was negligent in failing to turn to the left immediately before the occurrence" (special issue two) and in point of error two "the jury's finding . . . that defendant Clary's failure to turn to the left was not negligence is so against the great weight and preponderance of the evidence as to be manifestly unjust."

Their contentions are based in part on Clary's testimony when called as an adverse witness. Asked if there was "any way at all that you could have stopped in time to avoid her when you saw her stop," Clary replied, "Not unless I pulled to the left or pulled to the right." When asked why he did not pull to the left Clary responded, "Well . . . you just don't think that quick." When repeatedly asked if there was traffic in the lane to his left, Clary at first answered that the lane was open before reiterating that he did not think to look if it was open. The trial court granted the Kleins request for a trial amendment to their pleadings to include an allegation that Clary was negligent in failing to turn to the left.

Clary's testimony shows that the moment Mrs. Klein's brake lights came on he immediately stepped on his brakes to avoid the collision, and further indicates that he did not have time to see if he could turn left safely. He reacted immediately to attempt to avoid the collision. At best, he could have had but one of two choices: either to apply his brakes or turn his vehicle. The evidence does not establish that his reaction was wrong. The Kleins did not conclusively establish that the left lane was clear and open and that the collision could have been avoided by Clary turning to the left. Moreover, even if the left lane had been shown to be clear, Clary was not required to make a so-called correct choice between two equally reasonable alternatives for avoiding the collision. See Flores v. Anaya, 348 S.W.2d 410, 413 (Tex.Civ.App. Austin 1961, writ ref'd n. r. e.).

We do not agree that the Kleins have conclusively established as a matter of law that Clary was negligent in failing to turn to the left to avoid the collision as contended in point of error one. In like manner, we cannot agree with their second contention that the jury's failure to find that Clary was negligent in failing to turn left was against the great weight and preponderance of the evidence. It was uniquely within the jury's province to determine whether plaintiff succeeded in proving negligence by a preponderance of the evidence. City of Beaumont v. Graham, 441 S.W.2d 829, 835 (Tex.1969). From these facts we cannot say the absence of a finding is manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973). Points of error one and two are overruled.

In points three and five, respectively, the Kleins say they conclusively established as a matter of law that Clary negligently failed to keep a proper lookout and that this failure was a proximate cause of the collision. Also, they contend in points four and six that the jury's failure to find in their favor on these issues was so against the great weight and preponderance of the evidence as to be manifestly unjust.

The duty to maintain a proper lookout is determined by the...