Lewis v. Reichel, 4846

• Decision Date: 26 February 1953
• Docket Number: No. 4846,4846
• Citation: 256 S.W.2d 216
• Parties: LEWIS et al. v. REICHEL.
• Court: Texas Court of Appeals

Page 216

256 S.W.2d 216

LEWIS et al. v. REICHEL.

No. 4846.

Court of Civil Appeals of Texas, Beaumont.

Feb. 26, 1953.

Dyess & Dyess, Houston, for appellant.

McClain & Harrell, Conroe, for appellee.

R. L. MURRAY, Justice.

This is an appeal from a judgment of the district court of Montgomery County in favor of appellee W. T. Reichel, and against H. L. Lewis, doing business as Lewis Transfer & Storage Company, and Thomas Wayne Bedford, for damages for personal injuries suffered by the wife of appellee in a collision between Lewis' truck, driven by Bedford, and Reichel's car in which his wife was a passenger. The collision took place when the appellee drove his car into the rear of appellant's truck on a bridge across Spring Creek in Montgomery County.

The appellee brought suit against the two appellants, alleging the collision, the injuries to his wife and alleged negligence on the part of the driver of the truck, which he alleged to be a proximate cause of the injuries to his wife, as follows: Stopping or parking the truck on the bridge, stopping or parking the truck in the center of the bridge, stopping or parking the truck on the bridge when it was possible to park off the bridge, stopping or parking the truck without leaving an unobstructed width of the truck for the free passage of other vehicles, stopping or parking the truck on the bridge when a clear view of the truck was not available for a distance of 200 feet from each direction upon the highway, failure to place flares or other warning signals on the highway to the rear of the truck so as to give the traveling public sufficient warning of the presence of the truck, not having the truck equipped with one or more lamps exhibiting a red light visible for 500 feet from the rear of the truck.

The appellants filed a plea of privilege to be sued in Dallas County, the county of their residence, and also filed an answer subject to the plea of privilege. The plea of privilege was heard before the court and after a hearing was overruled. The case went to trial immediately after the hearing on the plea of privilege, was tried to a jury and on the jury's verdict judgment was rendered in favor of the appellee against the appellants for the sum of $10,000. The appellants filed a motion for instructed verdict, motion to set aside the order overruling their plea of privilege, motion for a mistrial, motion for a new trial, motion for judgment on a portion of the verdict of the jury and non obstante veredicto as to other portions of the jury's verdict. All such motions were overruled and the appellants have perfected their appeal, both from the order overruling the plea of privilege and the judgment on the merits.

The jury in its verdict found in favor of the appellants and against the appellee on all Special Issues in regard to negligence except one. The jury found that the truck of the appellant Lewis was not stopped on Spring Creek bridge at the time of the collision, and that the appellants did not fail to have the truck equipped with suitable lights visible from the rear of the truck. It also found that the collision wa not the result of an unavoidable accident. The jury by its answer found in favor of the appellee on all the various issues submitting the question of contributory negligence on the part of himself and his wife. The jury in its answers to Special Issues 7, 8 and 9 found that the appellants 'failed to leave an unobstructed width of the bridge opposite said truck for the free passage of other vehicles', that such failure was negligence and that such negligence was a proximate cause of the collision.

The testimony at the hearing on the plea of privilege by the appellee was in substance the same as his testimony on the trial of the case on the merits. The testimony of the driver of the truck was also in substance about the same as the truck driver's testimony on the trial. Appellee's testimony on the hearing was that he and his wife were driving south on Highway 75 towards Houston and that the truck going in the same direction was standing without any tail lights visible to him on a bridge; that he saw it and identified it as a standing object too late to stop his car, attempted to swerve to the left to pass the truck and discovered that a portion of the truck was across the center line of the bridge on his left so far that he did not have room to pass it and he then swerved back to his right and struck the rear end of the truck, demolishing his car and severely injuring his wife; that there were no flares placed on the road to the rear of the truck. The driver of the truck testified that he had not stopped his truck, that he had several red lights on the rear of the truck and his head lights on the front were burning; that he had slowed down as he approached the bridge because of a sign warning him of a narrow bridge ahead and he slowed down to meet a car coming from the opposite direction, that he was going at a rate of 10 or 15 miles per hour on the bridge when the truck was run into from the rear by appellee in his car.

It is apparent, therefore, that the trial judge who heard the plea of privilege believed the testimony of the appellee that the truck was stopped without flares and without tail lights, and the jury who heard the case on its merits did not believe such testimony but accepted the testimony of the truck driver that he was in motion on the bridge and had proper tail lights on his truck. The appellants contend in their brief that the evidence was wholly insufficient on the hearing on the plea of privilege to establish that a crime was committed in Montgomery County by the driver of the truck, and, therefore, the trial court erred in overruling their plea of privilege. The appellants raise, by numerous points of error, their contention that their plea of privilege should have been sustained. We believe the evidence on the hearing was sufficient to support the implied finding by the trial court that the driver stopped his truck on the highway when it was possible to stop or park if off the highway and that he stopped or parked the truck on the highway without leaving an unobstructed width on the highway or bridge opposite said truck for the free passage of other vehicles. These acts come within the allegations in appellee's petition in regard to negligence and they are made crimes by the provisions of Section 93(a) of Article 6701d, Vernon's Annotated Civil Statutes of Texas. It is not necessary that the plaintiff in a plea of privilege hearing prove that a crime was committed by the defendant beyond a reasonable doubt, as is contended by the appellants. Thomas v. Meyer, Tex.Civ.App., 168 S.W.2d 681. In such a civil proceeding as this it is incumbent upon such a plaintiff to prove only by a preponderance of the evidence that a crime or offense was in fact committed. See, also, Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. Also, it is not necessary that the pleadings of the plaintiff in such a case as this set out the crime in the exact language of the...