Laborde v. Anizan, 10532.

• Decision Date: 13 January 1938
• Docket Number: No. 10532.,10532.
• Citation: Laborde v. Anizan, 112 S.W.2d 763 (Tex. App. 1938)
• Parties: LABORDE v. ANIZAN.
• Court: Texas Court of Appeals

112 S.W.2d 763

LABORDE v. ANIZAN.

No. 10532.

Court of Civil Appeals of Texas. Galveston.

January 13, 1938.

Appeal from District Court, Galveston County; Chas. G. Dibrell, Judge.

Suit for injuries and damages to automobile arising out of automobile collision by Cleveland P. Laborde against A. F. Anizan, wherein judgment was entered for defendant on jury's answers to special issues. From an order refusing to grant a new trial for newly discovered evidence, plaintiff appeals.

Affirmed.

Fogle & Holden, of Houston, and Harris & Coltzer and Emmett F. Magee, all of Galveston, for appellant.

Wood & Morrow and Newton Gresham, all of Houston, for appellee.

CODY, Justice.

But one assignment of error is urged on this appeal — the refusal of the trial court to grant a new trial because of newly discovered evidence.

Appellant brought suit against appellee for damages for injuries to his wife, and for medical attention to her, and for damages to his automobile, resulting from a collision between such automobile, being then driven by his wife, and a truck belonging to appellee, being then driven by an employee of appellee.

In response to special issues the jury found: The collision was not an unavoidable accident. That the truck, immediately before the collision, was not being operated in excess of 20 miles per hour. That the truck driver kept a proper lookout. That he proceeded to the center of the intersection (of Houston avenue and Dart street in Houston) before turning to the left. That he held out his arm to indicate his intention to turn. That appellant's wife was driving in excess of 20 miles per hour, and that this was a proximate cause of the collision. That she failed to keep a proper lookout, and this was contributory negligence (as defined in the charge). That she failed to apply her brakes, and this was contributory negligence. That she was driving her automobile at an excessive rate of speed, and this was also contributory negligence. That she could not have avoided the collision by turning to the left, and going around the truck. That she failed to slacken the speed of her car as she approached the intersection, and this failure was contributory negligence. That her act in turning her car to the right immediately before the collision was not contributory negligence.

There was conflict in the evidence as to whether the truck was being driven slowly or fast. That given by appellant's witnesses was that it was being driven 28 or 45 miles an hour; that of appellee's only 8 or 18 miles per hour. There was a further conflict as to whether the truck made a wide turn around the center of the intersection, as testified to by appellee's witnesses, or a sharp turn by cutting directly into Dart street in front of the approaching car, as testified to by appellant's witnesses. The evidence was also conflicting as to the rate of speed at which appellant's wife was driving, whether it was between 15 to 20 miles per hour, or between 35 to 40 miles per hour. Also the evidence as to whether the driver of the truck signaled his intention to make the turn.

As indicated above, the answers returned by the jury were in favor of the evidence submitted on these issues by appellee, and against that submitted by appellant.

The newly discovered evidence urged as grounds for a new trial, in the motion for a new trial, was that Mrs. C. D. Box, of West Columbia, and Mrs. W. W. Morrow, of Houston, were present at 1410 Dart street, from which they saw the collision. That they would testify appellee's truck cut the corner sharp (i. e., the intersection of Houston avenue and Dart street) going at the speed of about 35 miles per hour; and they would further have testified that Mr. and Mrs. Felix Cleveland, who had given favorable testimony for appellee, and who had testified they had seen the collision from the porch on the house at 1410 Dart street, were not there. Appellant in his motion for a new trial set forth that he had no knowledge that these newly discovered witnesses had any knowledge of the accident until after the trial, and that their evidence would probably have resulted in a verdict and judgment for appellant. He further alleged that he had used due diligence to find witnesses to the...