Lone Star Gas Co. v. Fouche

• Citation: 190 S.W.2d 501
• Decision Date: 26 October 1945
• Docket Number: No. 14720.,14720.
• Parties: LONE STAR GAS CO. v. FOUCHE.
• Court: Court of Appeals of Texas

Page 501

190 S.W.2d 501

LONE STAR GAS CO. v. FOUCHE.

No. 14720.

Court of Civil Appeals of Texas. Fort Worth.

October 26, 1945.

Rehearing Denied November 30, 1945.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by Martin W. Fouche against the Lone Star Gas Company to recover for injuries sustained when an automobile which plaintiff was driving collided with defendant's parked truck. From a judgment for plaintiff, defendant appeals.

Affirmed.

Thompson, Walker, Smith & Shannon and John A. Kerr, Jr., all of Fort Worth, for appellant.

Simpson & Simpson, of Fort Worth, for appellee.

McDONALD, Chief Justice.

This is a damage suit arising out of a collision between an automobile driven by appellee and a truck owned by appellant. Trial to a jury resulted in a judgment in favor of plaintiff, the appellee here, in the sum of $15,234.

Under the first of their two points of error appellant asserts that the undisputed evidence shows that appellee was guilty of contributory negligence in failing to keep a lookout in the direction he was traveling.

The collision occurred in the early morning, while it was still dark, on December 24, 1943. Defendant's truck was what is often referred to as a small pick-up. The cab was about six feet high from the ground. The body consisted of a small bed with sides a foot or more in depth. On the morning in question, defendant's truck was proceeding north across a viaduct in the city of Fort Worth. As the truck went over the crest of the viaduct, and started down the north slope, it skidded in such manner that it stopped with its front end near the east curb, and with the rear end of the truck at or near the center of the roadway. The truck was left standing in an east-west position—in other words, cross-wise of the street. Shortly thereafter, plaintiff drove north across the viaduct in his automobile, and collided with the parked truck. The jury found the truck driver guilty of negligence in failing to move his truck before the collision occurred, and in failing to give plaintiff warning of the presence of the truck. No complaint is made here of these findings of the jury, although, as will be noted later, appellant contends that there is no evidence to support the finding of the jury that the negligence of its driver was a proximate cause of the injuries suffered by plaintiff.

Plaintiff testified that as he drove up the south slope of the viaduct the light from his car lamps was elevated in such manner, by reason of the slope of the viaduct, that he did not see the truck until he went over the crest and started down the north slope, and that it was then too late to avoid the collision. Appellant seeks to demonstrate, by elaborate engineering drawings, by testimony of engineers, and by photographs, that plaintiff's testimony is necessarily inaccurate, in that the slope of the viaduct was such that the lights from plaintiff's car would have been cast upon the truck when the plaintiff was from 150 to 200 feet away from the truck. In other words, appellant argues that its truck must have been in plain view of plaintiff, and that plaintiff's failure to see it sooner must, as a matter of law, have been the result of a failure on the part of plaintiff to keep a lookout in the direction he was traveling.

Plaintiff testified that at the time of the collision, and immediately prior thereto, it was raining, sleeting, misting, and foggy.

Much has been written concerning contributory negligence in cases where the plaintiff has collided with a truck or other vehicle parked in the road. We have had occasion to consider such cases fairly recently. Pope v. Clary, Tex.Civ.App., 161 S.W.2d 828, writ refused for want of merit; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715. In both cases we declined to hold that the evidence showed contributory negligence as a matter of law. Perhaps there is no clearer statement as to the conflict of authority, and as to the trend of the Texas decisions, than the following:

"While appellant submits an impressive array of authorities drawn from various jurisdictions holding that contributory negligence barring recovery is present when one drives an automobile at such speed that it may not be stopped within the distance that objects can be seen ahead of it at a time when the driver's vision is limited or impaired by reason of darkness, fog, or other atmospheric condition or the presence of smoke, or by blinding headlights, it is also true that there are numerous equally respectable authorities holding that in such cases the question of proximate cause is for the jury. See Castille v. Richard, 157 La. 274, 102 So. 398, 37 A.L.R. 586, et seq., and Peasley v. White, 129 Me. 450, 152 A. 530, 73 A.L.R. [1017], 1020 et seq. The rule that the question of proximate cause is for the jury prevails in Texas, and we would be out of harmony with the trend of judicial decision in this State and, as we construe them, with the pronouncements of our own Supreme Court, if we should hold that, as a matter of law, Mrs. Simmons was required to foresee that her roadway would be obstructed by one or more trucks or other vehicles parked therein without lights and in violation of law, or by any similar obstruction which would produce results like unto those that caused her injuries. Tarry Warehouse & Storage Co. v. Duvall , 115 S.W.2d 401, reversing, Tex.Civ.App., 94 S.W.2d 1249; Ambercrombie Co. v. Delcomyn, Tex.Civ.App., 116 S.W.2d 1105; Melton v. Manning, Tex.Civ.App., 216 S.W. 488; Swiff v. Michaelis, Tex.Civ.App., 110 S.W. 2d 933; citing Pennington Produce Co. v. Wonn, Tex.Civ.App., 49 S.W.2d 482. Swiff v. Michaelis, supra, is directly in point." Western Development Corp. v. Simmons, Tex.Civ.App., 124 S.W.2d 414, 416, writ refused.

In addition to the above case, and the other cases cited in said opinion, see also McCullough Box & Crate Co. v. Liles, Tex.Civ.App., 162 S.W.2d 1055, and Oil City Iron Works v. Stephens, Tex.Civ. App., 182 S.W.2d 370.

Even if we accept the argument of appellant that the physical facts show without dispute that the contour of the viaduct is such that the lights of appellee's car would have shone on the truck while appellee still was far enough away to stop, it is to be remembered that it was raining, sleeting, misty and foggy. We cannot, after comparing the facts in the case before us with the facts in the cases above referred to, sustain the contention that the undisputed evidence shows contributory negligence as a matter of law.

Several cases are cited by appellant, but they may be distinguished from the case on appeal, and from those above cited.

In Aranda v. T. & N. O. R. Co., Tex. Civ.App., 140 S.W.2d 236, writ dismissed, correct judgment, the jury found that plaintiff was guilty of contributory negligence, the contention made on appeal being that the evidence showed without dispute that he was not. It was the opposite of the situation now before us.

In Galveston Truck Line Corp. v. Moore, Tex.Civ.App., 107 S.W.2d 426, writ dismissed, the trial court, without a jury,...