Lofland v. Jackson

• Decision Date: 30 October 1950
• Docket Number: No. 6068,6068
• Citation: 237 S.W.2d 785
• Parties: LOFLAND v. JACKSON et al.
• Court: Texas Court of Appeals

Page 785

237 S.W.2d 785

LOFLAND v. JACKSON et al.

No. 6068.

Court of Civil Appeals of Texas, Amarillo.

Oct. 30, 1950.

Rehearing Denied Nov. 27, 1950.

Campbell & Brock and Vickers & Vickers, Lubbock, for appellant.

McWhorter, Howard, Cobb & Gibson and Crenshaw, Dupree & Milam, Lubbock, for appellees.

PITTS, Chief Justice.

This suit was filed by appellant, Buna Lofland, a feme sole, against appellees, Richard E. Jackson and Avalanche-Journal Publishing Company, a corporation, to recover actual damages in the sum of $36,000 together with special damages in the sum of $2,500 because of personal injuries sustained by her about 8:25 o'clock a. m. on November 24, 1948, at a street intersection in Lubbock as a result of her body coming in contract with a moving automobile owned and operated by appellee Richard E. Jackson who was an employee of appellee Avalanche-Journal Publishing Company. The case was tried to a jury on special issues and as a result of the verdict judgment was rendered for appellees from which an appeal has been perfected to this court.

Appeal predicates her apeal upon eleven points of error, some of which are challenged by appellee, Avalanche-Journal Publishing Company, on the grounds that they are multigarious and that some of them were waived because no complaint was made about them in appellant's motion filed in the trial court seeking a new trial. We find some merit in the challenge made by the said appellee. Apellant's first point charges that the trial court erred in submitting special issues 1 through 9 to the jury. In these issues the trial court inquired about three separate and distinct acts of negligence on the part of appellee Jackson and inquired if each constituted negligence and if such negligence, if any, was the proximate cause of the injury. The acts of negligence inquired about were whether or not the said appellee exercised ordinary care to avoid the accident; whether or not he failed to keep a proper lookout; and whether or not he yielded the right of way to appellant.

It has been held that a point of error in multifarious and should not be considered on appeal when it employs more than one specific ground of error or when it attempts to attack several distinct and alleged errors and rulings of the trial court. Several of appellant's other points of error are multifarious. Her fifth point charges that the trial court erred in submitting to the jury issues 11 to 16, inclusive, inquiring about separate and distinct acts of negligence by appellant and if each such constituted contributory negligence which proximately caused her injuries. We likewise notice that appellant's points of error are very lengthy and do not briefly and definitely point out the specific alleged errors or concrete rulings of the trial court about which she is complaining. We shall not prolong this opinion by repeating any of appellant's lengthy points of error but in some instances a single point is typewritten and covers approximately a page and a half of long paper 14 inches by 8 1/2 inches and her points are argumentative, state alleged facts, voluminous and are too general and too indefinite to be considered on appeal. Such matters are thoroughly discussed by this court, with numerous authorities cited, in the case of Darling v. Panhandle & Santa Fe. Ry. Co., Tex.Civ.App., 209 S.W.2d 660. We likewise find that some of the matters about which appellant complains in her first point are waived because they were not distinctly set forth as grounds of error in her motion in the trial court for a new trial as is required by Rule 374, Texas Rules of Civil Procedure, and authorities thereunder cited.

However, it has long been the policy of this court to indulge a liberal construction in favor of the sufficiency of a brief and to give effect thereto if we can determine with some degree of certainty what a party is complaining about. A failure to comply with the rules governing briefing on appeal does not meet with our approval, yet we think we are vested with discretion in the matter of considering points of error even if they are not presented in strict compliance with the rules if we can determine from the brief the substance of the complaints made. It appears from the record that the controlling issues here presented can be disposed of without discussing in detail the points of error presented.

The jury exonerated appellee Jackson, the driver of the automobile, and appellant both of any negligence that resulted in appellant's injuries and found that the collision in question, which resulted in her injuries, was an unavoidable accident. Appellant contends that appellee Jackson was guilty of negligence as a matter of law and that such negligence was the proximate cause of the collision which resulted in her injuries as a matter of law. Appellant further contends that appellee Avalanche-Journal Publishing Company is liable jointly and severally with Jackson to her for damages as a result of Jackson's unlawful negligence because Jackson was an employee of Avalanche-Journal Publishing Company and was using his automobile at the time and place of the collision in the course of his employment.

The record reveals that the accident occurred at the intersection of 14th Street and Avenue L in Lubbock near the business area. 14th Street runs east and west and Avenue L runs north and south. There were no signal lights at the street intersection to warn or govern traffic. On this early morning occasion appellant was walking north along the east side of Avenue L where it crossed 14th Street. Appellee Jackson was on his way from his home to the business establishment of appellee Avalanche-Journal Publishing Company with which he was employed. He was driving south on Avenue L but turned east to his left onto 14th Street when he reached the intersection of 14th Street and Avenue L and just before he reached the point where the collision occurred. Appellant was on the cross-walk for pedestrians and near the middle of 14th Street when the collision occurred. At the southeast corner of the intersection of 14th Street and Avenue L and on a lot adjacent to both, there is a large two-story house. The said Street and Avenue are each paved and are each 54 feet wide from curb to curb. On the occasion in question automobiles were parked on both sides of 14th Street east of its point of intersection with Avenue L. They were parked head-on, at an angle and facing the curb, and each extended out into the street 12 or 13 feet on each side of 14th Street. They were parked along the curb on the said street extending nearly to the said intersection with some of them parked in front of the two-story house heretofore mentioned. One automobile was parked near the pedestrian cross-walk where the collision occurred, extending in the street so that it and the two-story house cast a shadow over the pedestrian walkway.

Appellee Jackson testified, in effect, without being contradicted that on the occasion in question he practically stopped his automobile as he approached the intersection in question and looked for other moving vehicles but saw none approaching from any direction. Neither did he see any pedestrians crossing either 14th Street or Avenue L. At that time of the year the sun had risen south of due east and it was shining at an angle and to his left as he approached the intersection. Yet it did not then interfere with his vision. He shifted his automobile into second gear and proceeded into the intersection to make a left turn on 14th Street heading east at a speed of about 10 miles per hour. The two-story house on the southeast corner of the intersection cast a shadow from the sun three-fourths of the way across the street intersection. As he turned east out of the intersection the said shadow gradually covered his automobile in front and finally covered his face shutting the sun off and affecting his vision momentarily, followed immediately by the bright sunlight coming out from behind the two-story house, striking Jackson, the driver, in the face and blinding him momentarily. Until then he had not seen appellant or any other pedestrians crossing either 14th Street or Avenue L. At the moment the light of the bright sun hit him in the face, he saw an image in front of his automobile and quickly put on his brakes. He stopped his automobile within 3 or 4 feet but the collision occurred just as he saw the image and as he was blinded by the sun. He got out of his automobile and went to appellant immediately. She was lying near the middle of 14th Street and he could see that she had been injured and was shocked if not almost hysterical. But she remarked that she had been hit and wanted to go to her place of business nearby. He, another man and two ladies who appeared on the scene, got her in an automobile and took her to the hospital. He further testified that the shadow of the two-story house obstructed his clear vision momentarily as he made the turn and prevented him from seeing distinctly and determining particularly about any object within the shadow just ahead of him. He likewise testified that he did not know until that occasion about the dangerous existing conditions at that intersection on a bright sunshiny morning at that season of the year, but he had observed it several times since then. He testified that appellant told him after they got to the hospital that morning that she saw him coming but she thought he would see her and stop or that she would be out of the way in time to avoid the collision; that she also told him at the hospsital that it was no more his fault than hers and that it was just one of those things that could not be helped. Appellant denied having made the latter statement to him.

Appellant testified that she was on her way to her place of business aobut 8:25 o'clock on the morning she was injured; that she saw the automobile approaching, coming south on Avenue L less than a minute before it...