Lockley v. Page, A-53.

• Decision Date: 24 May 1944
• Docket Number: No. A-53.,A-53.
• Citation: 180 S.W.2d 616
• Parties: LOCKLEY v. PAGE.
• Court: Texas Supreme Court

Page 616

180 S.W.2d 616

LOCKLEY v. PAGE.

No. A-53.

Supreme Court of Texas.

May 24, 1944.

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

Action by G. C. Lockley against Oscar Page to recover for personal injuries sustained by plaintiff when defendant's taxicab collided with an automobile driven by plaintiff. Judgment for plaintiff was reversed by Court of Civil Appeals, 176 S.W. 2d 991, and plaintiff brings error.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court reformed and, as reformed, affirmed.

Scarborough, Yates & Scarborough and Edmund C. Yates, all of Abilene, for plaintiff in error.

House, Mercer, Edwards & Irvin, R. L. House, and Raymond Edwards, all of San Antonio, for defendant in error.

SMEDLEY, Commissioner.

The following statement of the nature of the case and the result of the trial is made in the opinion of the Court of Civil Appeals:

"G. C. Lockley sued Oscar Page (Black and White Cab Company) to recover damages for personal injuries resulting from a collision between a taxicab, owned by defendant and driven by an employee, and an automobile used by plaintiff. The collision occurred at night on Pine Street in the City of Abilene. The automobile in charge of plaintiff, and in which he was seated, was standing still when struck by defendant's taxicab approaching from the rear. Plaintiff alleged negligence of the taxi-driver in the following respects:

"`1. Said taxi-driver failed to keep a proper look-out.

"`2. Said taxi-driver was driving at an excessive rate of speed.

"`3. Said taxi-driver was operating said cab at night in the City of Abilene and State of Texas, an incorporated city, in excess of twenty-five miles an hour.'

"Defendant pleaded a number of grounds of defense consisting of contributory negligence, and in addition thereto pleaded that bright lights of a third party blinding defendant's taxi-driver was the sole cause of the accident, and, alternative to all defenses of contributory negligence, alleged that the collision was due to unavoidable accident.

"In a trial by jury only one of the three alleged grounds of recovery was submitted, namely, negligence consisting of a failure of the taxi-driver to keep a proper lookout. The issues involved in such ground of recovery, as well as all defensive issues submitted, were found in favor of plaintiff. From the judgment, in the sum of $1,674, based to the extent of $1,500 upon said verdict and to the extent of $174 upon a finding made by the judge, the defendant has appealed."

The Court of Civil Appeals reversed the judgment of the district court and remanded the cause, holding that there is no evidence to raise the issue that the driver of the taxicab was not keeping a proper lookout. 176 S.W.2d 991, 994.

Plaintiff had been driving his automobile south on Pine Street in the City of Abilene pushing a friend's automobile, and immediately before the collision, had stopped the automobile on the west side of the street, according to his testimony about two feet from the gutter. Defendant's evidence was that plaintiff's automobile was nearer the center of the street. Plaintiff testified that the front and rear lights of his automobile were burning when the collision occurred, while the taxicab driver testified that they were not. The jury found, in answer to special issues, that plaintiff was not guilty of negligence in stopping or parking the automobile at the place where he had parked it just before the collision and that plaintiff did not fail to "park his car off to one side of the street". The conflict in the testimony as to whether the rear light of plaintiff's automobile was burning was also resolved by the jury in plaintiff's favor.

The driver of the taxicab, defendant's employee, testified that immediately before the collision he was traveling south on Pine street at a rate of fifteen or twenty miles an hour; that when he was not over a hundred yards from the place where the collision occurred, an automobile with bright lights came out of a gasoline service station into the street, driving toward him; that the lights blinded him; that just after the automobile passed he saw the plaintiff, Lockley, who was about three or four, or six or eight, feet from him when he first saw him; that he swerved his car and caught Lockley's back bumper. He testified further that he did not see Lockley's automobile before he hit it; that the lights of the approaching automobile blinded him and he could not see anything.

The following questions were asked and answers given on the cross-examination of this witness:

"Q. Why didn't you stop? A. I was right in the center of the street.

"Q. Why didn't you stop when you couldn't see anything in the road? A. I don't know why I didn't.

"Q. But you didn't? A. I didn't. I just kept going at about fifteen or twenty miles.

"Q. Just kept going, taking a chance, and when you got down there, you hit this fellow? A. Yes.

"Q. And you didn't know that there was anybody in the street, until you hit him? A. No. I couldn't see.

"Q. You couldn't tell what part of the street he was in? A. Yes, I...