Lewis v. Martin, 4933.

• Decision Date: 10 October 1938
• Docket Number: No. 4933.,4933.
• Citation: 120 S.W.2d 910
• Parties: LEWIS v. MARTIN.
• Court: Texas Court of Appeals

120 S.W.2d 910

LEWIS v. MARTIN.

No. 4933.

Court of Civil Appeals of Texas. Amarillo.

October 10, 1938.

Rehearing Denied November 7, 1938.

Appeal from District Court, Swisher County; C. D. Russell, Judge.

Action by R. S. Lewis against A. P. Martin for personal injuries, medical bills, and automobile repairs occasioned by an automobile collision. Judgment for defendant, and plaintiff appeals.

Affirmed.

Dennis Zimmermann, of Tulia, and Glenn R. Lewis, of San Angelo, for appellant.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellee.

JACKSON, Chief Justice.

R. S. Lewis, the appellant, instituted this suit in the District Court of Swisher County against A. P. Martin, the appellee, to recover damages for personal injuries, medical bills and car repairs in the sum of $4,146.35, occasioned by an automobile collision claimed to have resulted from certain negligent acts of the appellee which are sufficiently disclosed in the findings of the jury set out below.

The appellee answered by numerous exceptions, general denial and pleaded that appellant was guilty of certain acts of contributory negligence, which appear in the verdict here set out.

The jury found in response to the special issues submitted that the appellant reached the intersection where the collision occurred prior to the time the appellee did; that appellee drove his automobile into and against appellant's car; that he was operating his car at the time of the collision with insufficient brakes; that each of such acts were negligence and each a proximate cause of appellant's injuries; that the appellant suffered damages aggregating the sum of $605.85; that he could see as he approached that appellee might enter the intersection, but neither the speed at which appellant was driving, more than twenty miles per hour, nor his failure to slow down constituted negligence or was a proximate cause of the collision; that the appellant, as he approached the intersection, failed to keep such a lookout as a person of ordinary prudence would under similar circumstances, and such failure was negligence and a proximate cause of appellant's damages, but that appellant had his automobile under control as he approached the intersection.

On these findings judgment was entered that plaintiff take nothing by his suit and defendant go hence without day and recover his cost.

The uncontroverted testimony shows that appellant was driving west on a state highway and appellee was driving north on a road intersecting said highway, and that the collision occurred on said intersection.

The appellant challenges as error the action of the court in rendering judgment against him upon the finding of the jury that he was guilty of contributory negligence in failing to keep a lookout for approaching vehicles as he neared the intersection where the collision occurred and that such failure was the proximate cause of the collision since the jury found on sufficient testimony that appellee was approaching the vehicle of appellant from the right, and, on account thereof, appellant was not required to keep a lookout for vehicles, but was authorized to rely absolutely on the observance by appellee of article 801 of the Penal Code, which provides that:

"The operator of a vehicle approaching an intersection on the public highway shall yield the right-of-way to a vehicle approaching such intersection from the right of such first named vehicle."

Appellant does not challenge the sufficiency of the testimony to support the finding that he was negligent in failing to keep a lookout and that such negligence was a proximate cause of the injuries, but contends that as a matter of law he was relieved of the exercise of ordinary care and was authorized to assume absolutely that appellee would in all events protect him by yielding the right of way.

In American Grocery Co., Inc. v. Abraham, 94 S.W.2d 1231, writ dismissed, the Court of Civil Appeals says [page 1232]:

"While it is true that article 801 (E) requires the operator of a motor vehicle approaching an intersection to yield the right of way to a vehicle approaching the intersection from his right, this statute, as said by the Beaumont Court of Civil Appeals, must be given a reasonable interpretation. Jimmie Guest Motor Co. v. Olcott, 26 S.W. 2d 373."

Southland-Greyhound Lines, Inc. v. Richardson, Judge, et al., 126 Tex. 118, 86 S.W.2d 731, was a suit for personal injuries claimed to have been inflicted in an automobile collision in which the jury found the plaintiff guilty of contributory negligence in not keeping a lookout, notwithstanding he was driving on the side of the highway where he had a lawful right to be. Commissioner Smedley, speaking for the court, says [page 734]:

"The jury found that plaintiff was driving his car at a rate of speed in excess of 15 miles an hour at the time of the collision, and that he failed to keep a lookout, and then in answer to issues separately submitted found that each of these acts of the plaintiff constituted contributory negligence as defined in the charge. In so finding the jury answered that the acts were negligent and that they were proximate causes, because the definition of contributory negligence in the court's charge as hereinabove quoted includes these two essential elements. The definition given is an approved definition. Martin, Wise & Fitzhugh v. Texas & P. Ry. Co., 87 Tex. 117, 121, 26 S.W. 1052; Koons v. Rook (Tex. Com.App.) 295 S.W. 592, 593, 597.

"* * * * * *

"Judgment should have been rendered for the defendant, because the verdict found acts of negligence on the part of the plaintiff and that such acts, concurring or co-operating with negligent acts of the defendant, were proximate causes of the injuries."

See, also, El Paso Electric Railway Co. v. Benjamin, Tex.Civ.App., 202 S.W. 996; Cruse v. Chacon, Tex.Civ.App., 67 S.W. 2d 399, writ dismissed.

The authorities from other jurisdictions are in substantial harmony in holding that a law which gives the operator of a car the right of way does not unqualifiedly relieve him from the exercise of such care as an ordinarily prudent person would exercise under the same or similar circumstances....