Little Rock Furniture Mfg. Co. v. Dunn

• Decision Date: 18 February 1949
• Docket Number: No. 15024.,15024.
• Citation: 218 S.W.2d 527
• Parties: LITTLE ROCK FURNITURE MFG. CO. v. DUNN.
• Court: Texas Court of Appeals

Page 527

218 S.W.2d 527

LITTLE ROCK FURNITURE MFG. CO. v. DUNN.

No. 15024.

Court of Civil Appeals of Texas. Fort Worth.

February 18, 1949.

Rehearing Denied March 18, 1949.

Appeal from District Court, Collin County; W. C. Dowdy, Judge.

Action by R. L. Dunn against Little Rock Furniture Manufacturing Company for damages resulting from automobile collision. From a judgment for plaintiff, defendant appeals.

Affirmed.

Leachman, Matthews & Gardere and Henry D. Akin, all of Dallas, for appellant.

Harvey L. Davis and J. A. Blakeley, both of Dallas, for appellee.

McDONALD, Chief Justice.

Appellee Dunn, as plaintiff in the trial court, recovered judgment against appellant Little Rock Furniture Manufacturing Company on a verdict of the jury for damages resulting from a collision between plaintiff's automobile, in which he was riding, and appellant's truck.

Under the first point of error it is contended that defendant should have had an instructed verdict, and under the second point that it should have had judgment non obstante veredicto, on the ground that plaintiff was guilty of contributory negligence as a matter of law. The jury verdict was favorable to plaintiff on the issues of contributory negligence.

The collision occurred about 11:30 at night in clear weather. The truck, which had developed motor trouble, was parked on the highway, partly on and partly off the paved portion. Plaintiff drove into the rear end of the truck. The verdict and judgment being favorable to plaintiff, the evidence will be viewed in the light most favorable to him.

Plaintiff testified that he had no recollection of seeing the truck or colliding with it. He had no recollection of seeing any flares set out on the highway, nor of applying his brakes. The evidence, including the testimony of a physician who treated him, supports a conclusion that his injuries produced a loss of memory from some time previous to the time of the collision to the time he regained consciousness in the hospital.

The truck lights had been turned off. The jury found that the truck driver failed to place a lighted flare on the highway not less than 150 feet nor more than 200 feet in every direction from which a vehicle might approach the truck. The testimony most favorable to the plaintiff is that the flare to the rear of the truck was about fifty or sixty feet from it. The truck and plaintiff's car were both headed in a southerly direction. Just prior to the time of the collision another automobile was approaching from the opposite direction and was about even with the rear of the truck when the collision occurred, but had been driven off the highway far enough that there would have been room for plaintiff's automobile to pass between said automobile and the truck. Along the route plaintiff was traveling just prior to the collision there was a slight decline, then a culvert, then a slight incline. The truck was parked about 150 feet beyond the culvert and up the incline. According to the opinion of one witness, the lights of plaintiff's automobile as he came down the decline would not have shone on the truck. The pavement was eighteen feet wide. According to an occupant of the approaching automobile, its lights could have blinded plaintiff as the latter approached the truck. According to the estimate of the only witness who saw the collision — other than plaintiff — both automobiles were traveling about fifty miles per hour. Plaintiff's automobile, according to this witness, turned neither to the right nor to the left, nor changed its speed, as it approached and collided with the truck. Another witness who came to the scene of the collision after its occurrence saw skid marks made, he thought, by plaintiff's tires, leading about 10 or 15 feet up to the rear of the truck.

Plaintiff thought that he could have stopped his automobile within forty or fifty yards if traveling at fifty miles per hour.

Defendant offers the suggestion that plaintiff may have fallen asleep just prior to the collision. He points out that plaintiff had been traveling since about 11:00 o'clock that morning, and attaches importance to the testimony of plaintiff that among the last events he could recall was seeing a road marker saying "37 miles to Dallas." Defendant figures from the testimony that the collision occurred about 43 miles from Dallas, and argues that plaintiff must have dreamed of seeing the road marker saying that it was 37 miles to Dallas. Defendant says that the truck was large, and painted in bright colors, and could easily have been seen by anyone keeping a lookout as he approached it. The occupant of the other car who testified said that he saw the truck when about 400 feet away from it. Defendant says that unless plaintiff was asleep, there is no explanation of why he drove headlong into the rear of the truck without applying his brakes or changing his course.

Brief references will be made to the decisions cited by defendant in support of its contention that the evidence makes out a case of contributory negligence as a matter of law.

Blunt v. H. G. Berning, Inc., Tex.Civ. App., 211 S.W.2d 773, writ ref. In this case the jury found contributory negligence. It was plaintiff who appealed, complaining of such verdict. The decision supports the judgment rendered in the case before us. For one thing, it is in point on the facts with regard to the inability of the injured person to account for his actions due to a loss of memory. The court expressly recognizes the rule to be in such a case that in the absence of direct evidence to the contrary, a presumption would intervene on behalf of the injured party to the effect that he was in the exercise of due precaution for his own safety so as to preclude a finding of contributory negligence as a matter of law. The court went on to declare that in the case before it the question of contributory negligence was one for the jury to decide.

Henwood v. Gilliam, Tex.Civ.App., 207 S.W.2d 904. Here the court overruled the contention that the evidence showed contributory negligence as a matter of law.

Standard Paving Co. v. Webb, Tex.Civ. App., 118 S.W.2d 456, 458. An important difference between this case and the one before us is that Webb testified concerning the events leading up to the collision. He testified that he did not discover the truck he ran into until he was within twenty feet of it, and failed to offer any reason why he did not, except for a possible suggestion that the lights on his car were not good enough to enable him to see it. The following excerpt from the opinion indicates the reason for holding that the evidence showed contributory negligence as a matter of law:

"A fact that distinguishes this case and the decisions we have followed in our original opinion from many of those cited by appellee, in which it was held that the issue of contributory negligence of plaintiff suing for damages resulting from a collision of his car with some negligent obstruction of the highway by the defendant, was a question for the jury, is the absence of any testimony of plaintiff in this case to explain why he did not discover the truck before he swerved his car to the left to avoid colliding with it; his only excuse offered being that he did not see it until right on it."

Cross v. Wichita Falls & S. R. Co., Tex. Civ.App., 140 S.W.2d 567. The conduct of the plaintiff was similar to that of the plaintiff in Standard Paving Co. v. Webb, and we may distinguish it from the case before us by referring to the excerpt just quoted from the Standard Paving case.

We have carefully studied the opinion in Jones v. Sunshine Grocery & Market, Tex. Civ.App., 236 S.W. 614. The opinion contains some statements which, taken alone, might tend to support the arguments defendant makes in the case before us, but we do not consider the decision as requiring a holding that contributory negligence is shown as a matter of law in the case now on appeal. We hold this especially in view of what is said in Blunt v. H. G. Berning, Inc., supra, a much later case, and one in which the application for writ of error was refused, where the plaintiff had suffered a loss of memory, and also in view of what is said in Boaz v. White's Auto Stores, which will be discussed later in this opinion, where death of the injured party prevented an explanation by him of his conduct.

Many cases can be found where it was held on the record before the court that contributory negligence was a question for the jury. A good many of them are cited in the opinion in Cross v. Wichita Falls & S. R. Co., supra. We shall not cite nor discuss all the cases cited by appellee in support of the judgment. The decisions above cited, with the decision which we shall next discuss, are sufficient authority, we think, for overruling the contention that contributory negligence as a matter of law is shown in the case before us.

In Boaz v. White's Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 482, Boaz was killed while crossing a highway. As the court says, "Why he did not get across this 18-foot pavement before the truck struck him rests in pure conjecture." The court then says:

"The above statement, to our minds, leads certainly to the conclusion that it cannot be held, as a matter of law, that the acts of the deceased constituted contributory negligence, for the fact that the cause of the collision rests in conjecture, within itself, precludes such a holding. The presumption is that the deceased exercised ordinary care for his own safety, and in order for respondents to be entitled to have it ruled that, as a matter of law he failed to do so, the burden rested upon them to overcome that presumption by competent evidence so conclusively that reasonable minds could not differ with respect thereto. The question must be approached from the viewpoint of the deceased. His lips are closed and we do not have the benefit of his version of the occurrence. There is not the slightest suggestion that ...