Little Rock Furniture Mfg. Co. v. Dunn

• Decision Date: 29 June 1949
• Docket Number: No. A-2198.,A-2198.
• Citation: 222 S.W.2d 985
• Parties: LITTLE ROCK FURNITURE MFG. CO. v. DUNN.
• Court: Texas Supreme Court

Page 985

222 S.W.2d 985

LITTLE ROCK FURNITURE MFG. CO. v. DUNN.

No. A-2198.

Supreme Court of Texas.

June 29, 1949.

Rehearing Denied October 5, 1949.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by R. L. Dunn against the Little Rock Furniture Manufacturing Company to recover for injuries suffered by plaintiff when his automobile ran into the rear end of the defendant's truck which was parked partially on paved portion of highway. Judgment for the plaintiff was affirmed by the Court of Civil Appeals, 218 S.W.2d 527, and the defendant brings error.

Judgments of the district court and Court of Civil Appeals affirmed.

Leachman, Matthews & Gardere, Dallas, Henry D. Akin, Dallas, for petitioner.

J. Alex Blakeley, Dallas, Harvey L. Davis, Dallas, for respondent.

HART, Justice.

The respondent by this suit seeks to recover damages for injuries he suffered when his automobile ran into the rear end of the petitioner's truck while the truck was stopped partially on the paved portion of a highway. Respondent recovered judgment in the District Court, which was affirmed by the Court of Civil Appeals. 218 S.W.2d 527. In this court the jury findings of negligence and proximate cause are not attacked. Petitioner here contends that the judgments below should be reversed and judgment should be rendered in its favor because as a matter of law the respondent was guilty of contributory negligence causing the collision. In the alternative, it asserts that the cause should be remanded for a new trial because of a conflict in the answers of the jury to special issues.

In our opinion, the evidence, when viewed most favorably to the respondent, as we must view it, Long v. Henderson, Tex.Sup., 215 S.W.2d 585, does not show as a matter of law that the respondent was guilty of contributory negligence. The collision occurred about 11:30 at night. The petitioner's tractor-trailer truck was stopped with all of its lights turned off, on the paved portion of the highway, the left side of the truck being about five feet from the right edge of the pavement. The testimony of one of the witnesses indicated that the petitioner's driver had put out and lighted only one flare, which was placed about sixty feet behind the truck on the right edge of the pavement. The truck had two rear reflectors, one on each corner. The pavement was black in color. The petitioner's truck was painted dark blue, but had a white stripe about a foot wide and white lettering on it. The respondent was driving his automobile in the same direction as the truck, on his right side of the road. In the direction in which respondent was driving the highway sloped downward to a point within about 100 feet of the point where the truck was stopped, and then sloped upward to that point. The respondent was travelling at about fifty miles per hour, with the headlights on his car burning. As he approached the truck, an automobile came toward him from the opposite direction, and had reached a point about even with the rear end of the truck when respondent's automobile struck it. Ahead of the truck, the lights of the town of Royse City were visible. Respondent suffered a head injury which caused a loss of memory as to what happened at the time of the collision. Marks on the pavement showed that the tires on respondent's automobile slid about ten or fifteen feet before the automobile hit the truck. The front end of the automobile hit the left side of the rear end of the truck. The testimony showed that other automobiles, coming from the same direction, had passed safely around the truck before the collision, but petitioner's driver testified that shortly after the collision a car containing some colored people nearly ran into the back end of respondent's car.

From this evidence, we think there was some reasonable basis for the jury to conclude that the respondent was not guilty of contributory negligence. The color and location of the truck, the absence of lights on the truck, the lights of Royse City, and the headlights of the approaching car could reasonably be found to have made the truck very difficult to see. The one flare on the edge of the pavement might reasonably be taken to indicate road repairs or some obstruction on the side of the highway rather than the presence of a truck extending some five feet onto the pavement. The jury could reasonably have concluded that the respondent was driving with ordinary care but that he did not see the truck until it was too late to avoid it by turning or applying his brakes. We therefore agree with the lower courts that the petitioner's motions for judgment were properly overruled.

Petitioner urges that a mistrial should have been declared by the District Court because of a conflict in the jury's answers to special issues on the question of the respondent's failure to keep a proper lookout. These special issues and the jury's answers were as follows:

"Special Issue No. 15: Do you find from a preponderance of the evidence that at the time and place in question R. L. Dunn failed to keep a proper lookout for his own safety? If your answer is in the affirmative, let the form of your answer be `He failed to keep a proper lookout'; otherwise, let your answer be `No'.

"Answer: He failed to keep a proper lookout.

"If you have answered that Dunn `failed to keep a proper lookout', then answer the following issue; otherwise, you need not answer it.

"Special Issue No. 16: Do you find from a preponderance of the evidence that Dunn's failure to keep a proper lookout, if you have so found, was negligence, as that term has been defined to you herein? Answer `Yes' or `No'.

"Answer: No.

"If you have answered the foregoing issue `Yes', then answer the following issue; otherwise, you need not answer it.

"Special Issue No. 17: Do you find from a preponderance of the evidence that such failure of Dunn to keep a proper lookout, if you have so found, was a proximate cause of the collision? Answer `Yes' or `No'.

"Answer: ____"

In the preliminary instructions in the charge, the court defined "proper lookout" as follows: "You are instructed that the term `proper lookout' means such a lookout as an ordinarily prudent person would have kept under the same or similar circumstances."

When the verdict of the jury was brought in, containing the answers set out above, the record shows that the following colloquy occurred between the court, Mr. Todd, the foreman of the jury, Mr. Akin, the attorney for petitioner, and Mr. Blakeley, the attorney for the respondent:

"Court: Gentlemen of the jury, have you reached a verdict?

"Todd: Yes, sir.

"Court: All right, gentlemen, I will read you the answers to the issues. (The Court then reads the answers to all issues.) Gentlemen, that completes the answers. I would like for the attorneys to look at them for a minute and see if there are any conflicts. (The attorneys examine the Charge for a short time.) Will the attorneys please come up here now? (The attorneys approach the Bench.)

"Court: Mr. Blakeley, do you find any conflicts in the jury's answers and verdict?

"Blakeley: No, sir.

"Court: Mr. Akin, do you find any conflicts in the jury's answers and verdict?

"Akin: No, sir.

"Court: Mr. Blakeley, according to the jury's answers, for whom should a verdict be rendered?

"Blakeley: For the plaintiff.

"Court: Mr. Akin, what do you think about it?

"Akin: I think the jury's answers will support a verdict for the plaintiff.

"Court: (To both attorneys.) Now, gentlemen, I am about ready to receive this verdict, and I want to know for sure before I receive it whether you think there are any conflicts.

"Blakeley: We do not see any.

"Akin: We do not see any.

"Court: All right, shall I receive the verdict?

"Blakeley: It is all right with us.

"Akin: It is all right.

"Court: (To the jury.) And at the last of it, gentlemen, is this: `We, the jury, have answered the above and foregoing special issues as herein indicated, and herewith return same into court as our verdict.' Signed, `O. J. Todd, Foreman.' Now, gentlemen of the jury, is that the verdict of each and every one of you?

"Jury: Yes.

"Court: That is the way you want the issues answered? Let's have a show of hands. (All jurymen raise their hands.) All right, gentlemen, the Court will receive the verdict in this case, and the jury is discharged."

Thereafter the petitioner filed a motion to declare a mistrial because of an irreconcilable conflict between the jury's answers to Special Issues Nos. 15 and 16, and the refusal of the court to grant this motion was raised in the motion for new trial, which was also overruled.

It is apparent that, considering the definition the court gave of "proper lookout," the effect of the jury's answer to Special Issue No. 15 was that the respondent was negligent. Gillette Motor Transport, Inc. v. Lucas, Tex.Civ.App., 138 S.W. 2d 887, writ dismissed, judgment correct; Morton v. Jasper, Tex.Civ.App., 167 S.W 2d 541, writ refused, w. o. m.; Pope v. Jackson, Tex.Civ.App., 211 S.W.2d 958, affirmed without discussion of this point, Austin Road Co. v. Pope, Tex.Sup., 216 S.W. 2d 563; Erwin v. Wellborn, Tex.Civ.App., 207 S.W.2d 124, writ refused, n. r. e. This conclusion is unavoidable as a matter of law, although it seems probable that the jury was led to believe by the manner of the submission of the issues that Special Issue No. 15 did not include the question of negligence, since this question was separately and specifically submitted in Special Issue No. 16. Since "proper lookout" had previously been defined in the charge, Special Issue No. 16 could properly have been omitted because "two submissions of the same issue are never required." See Commercial Standard Ins. Co. v. Shudde, Tex.Civ.App., 76 S.W.2d 561, 565 (reformed and affirmed by Supreme Court without opinion, on agreed motion of the parties). However, neither party objected to the submission of these issues, and the result was that the...