Lone Star Gas Co. v. Haire

• Decision Date: 30 May 1931
• Docket Number: No. 12473.,12473.
• Citation: 41 S.W.2d 424
• Parties: LONE STAR GAS CO. v. HAIRE et al.
• Court: Texas Court of Appeals

41 S.W.2d 424

LONE STAR GAS CO. v. HAIRE et al.

No. 12473.

Court of Civil Appeals of Texas. Fort Worth.

May 30, 1931.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by Mrs. Mattie Haire, joined pro forma by her husband against the Lone Star Gas Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Marvin H. Brown, of Fort Worth, for appellant.

McLean-Scott & Sayers, of Fort Worth, for appellees.

BUCK, J.

Mrs. Mattie Haire, joined pro forma by her husband, Grady Haire, sued the Lone Star Gas Company, a corporation, and for cause of action alleged that on August 16, 1929, plaintiff was driving and operating a Chevrolet sedan, and at the time complained of was driving the same immediately behind a truck owned and operated by the defendant corporation. That defendant's truck was headed in a westerly direction and plaintiff's automobile was likewise headed in a westerly direction. That both motor vehicles were being operated on a public highway within the confines of the city limits of Fort Worth, said highway running, lying, and extending in an easterly-westerly direction. That defendant's truck was approaching North Fort Worth, and about 500 yards east thereof plaintiff was following said truck and had been following said truck in her automobile for approximately three-quarters of a mile. That previous to said truck arriving at the above-described point, plaintiff had undertaken on numerous occasions to pass the truck and get ahead of it, and each time plaintiff tried to pass said truck she sounded suitable, audible, and proper signal by means of blowing the horn of her car, thereby apprising the driver of said truck of her intention and desire to get ahead. That instead of permitting her to pass, each time she undertook to pass, the truck driver swerved the truck to the left, placing it in front of her car. That as plaintiff approached the point where plaintiff's car was forced from the road, she again sounded her horn as she was overtaking said truck. That upon the sounding of said horn and immediately thereafter, the driver of the truck, who was the agent of the corporation above named, directed and steered the truck to the right of the road, giving ample room to drive ahead and pass said truck to the left of same. That as plaintiff undertook to pass said truck on the proper left-hand side of same, she drove her car until its front end was immediately opposite and just behind the seat of the truck driver, and that both motor vehicles were proceeding in the same direction, and when her car had reached and attained the point just opposite the seat of the truck driver, the truck driver swerved to the left, thereby forcing and driving plaintiff's car from the highway and into a ditch some 6 or 8 feet deep, causing said car to be demolished and said plaintiff to sustain serious, painful, and permanent injuries.

Plaintiff further alleged that defendant's driver owed her the duty of operating and driving his truck as near the right-hand boundary of said highway as possible, thus allowing her automobile reasonable free passage to the left, and owed her the further duty of giving such assistance as the circumstances reasonably demanded in order to obtain clearance and avoid forcing and driving her car from the highway, and owed her the further duty to give way to the right in favor of her car as said truck was about to be overtaken; and owed her the further duty of keeping, operating, and driving said truck on the right-hand side of said highway as the same was being overtaken and passed.

Plaintiff further alleged that defendant corporation, its servant, agent, and employee, was guilty of negligence and carelessness in one or more of the following particulars, to wit: (a) In failing to yield the road and operate and drive said truck to the right upon audible and proper signal being given by plaintiff; (b) in failing to operate and drive said truck on the right-hand side of the road after it became known to the operator and driver of the truck, or in the exercise of ordinary care should have been known to the operator and driver of said truck, that plaintiff's automobile was in the act of passing said truck; (c) in driving and swerving said truck to the left, thereby forcing plaintiff's car from the highway; (d) in failing to operate and drive said truck as nearly as possible to the right-hand boundary of said highway.

Plaintiff further alleged that all of the above set out acts of negligence and carelessness, both as to acts of omission and commission, jointly and severally, were the direct and proximate cause of the injuries and damages sustained by her.

Plaintiff alleged that as her automobile was driven and forced from the highway, the same dropped some 6 or 8 feet and came in violent contact with a tree which was some 5 or 6 inches in diameter, and so great and violent was the contact of plaintiff's car with said tree that the same was broken. That as said car struck the ground and the tree, the tree was broken and she was thrown forward and her face and mouth came in contact with the steering wheel or some other part of said car; that her body was bruised and her entire nervous system severely shocked. That so great was the bruise to her face and month that seven of her teeth were knocked out; that her lower lip was cut and her lower jawbone received such a shock and blow that the teeth and nerves therein were destroyed. That as a direct consequence plaintiff has been, or will be, compelled to have some six or seven teeth removed. That plaintiff's body was bruised from her head to her feet; that she sustained a severe bruise to her right arm; that she sustained a serious bruise to her lip, causing the same to become black, blue, and swollen; and sustained a severe bruise to her nose, causing the same to swell up; and sustained a slight concussion to her head; that plaintiff, upon the occasion complained of, was riding with her young daughter, for whose safety she greatly feared, as well as her own, and such fact added to the severe shock to her entire nervous system; that plaintiff has been confined to her bed up to the filing of this petition; that she has been disfigured by virtue of the loss of her teeth, and such disfigurement is permanent and humiliating, causing her to suffer not only physical pain, but mental pain and humiliation, shame, and embarrassment; that as a result of the said conduct on the part of the defendant corporation, its servant, agent, and employee, in causing said collision, she will continue to suffer mental and physical pain, shame, and humiliation in the future and during the remainder of her life; that she has been permanently disfigured and cannot control her nerves, cannot sleep at night, and as a result of said negligence has been rendered very nervous and will remain in a highly nervous state for an indefinite period of time. She asked damages in the sum of $15,000.

Defendant filed its answer, consisting of a number of special exceptions, some of which will be hereinafter noted, a plea of contributory negligence on the part of plaintiff, and a plea that defendant's servant was driving its truck on the right-hand side of the public highway and that said public highway was broad enough to give the plaintiff ample room in which to pass and that defendant's driver did not swerve or move the truck at any time toward the center of said highway; that plaintiff in attempting to drive around defendant's truck ran her left wheels into some loose gravel that was laid on the road at said point, and when the left wheels of her car struck the gravel it skidded and she lost control of the same, and the car ran off of the highway. That said accident was not caused by any negligence on the part of defendant's driver.

The trial court submitted the cause to a jury on special issues, and in answer thereto the jury found: (1) That as plaintiff attempted to pass the defendant's truck on August 16, 1929, the driver of said truck swerved the same to the left. (2) That the driver was negligent as that term was defined by the court. (3) That such negligence was the proximate cause of the accident to the plaintiff. (4) That plaintiff gave an audible signal of her intention to pass defendant's truck just prior to attempting to pass the same. (5) That the rate of speed at which the plaintiff was driving as she attempted to pass the truck was negligence. The court had theretofore instructed the jury that negligence is failure to use ordinary care, and that 20 miles an hour is of itself negligence, and that a speed of 20 miles an hour or less may or may not be negligence, and such driving is to be measured by the definition of negligence as given above. (6) That such negligence, of which the jury found plaintiff was guilty in driving more than 20 miles an hour, was not a proximate cause or a cause which co-operated or concurred with any other cause to bring about the accident to plaintiff. (7) That with reference to the condition of the highway on the left-hand side at the place where the plaintiff attempted to pass defendant's truck, plaintiff was not negligent in attempting to pass defendant's truck. (8) That plaintiff used ordinary care to keep her car under control as she attempted to pass defendant's truck. (9) That the accident did not happen to plaintiff without the negligence of either the plaintiff or the driver of the truck. The jury fixed the damages to which plaintiff was entitled at $2,250.

The court rendered judgment that plaintiff, joined pro forma by her husband, have and recover of and from the defendant, Lone Star Gas Company, the sum of $2,250, with interest thereon at the rate of 6 per cent. per annum from April 28, 1930, together with all costs of court. From this judgment the defendant has appealed.

Opinion.

Defendant excepted to the action of the trial court in overruling its exception to this part of plaintiff's...