Lopez v. Lone Star Beer, Inc. of Corpus Christi

• Decision Date: 18 March 1971
• Docket Number: No. 584,584
• Citation: 465 S.W.2d 774
• Parties: Trinidad R. LOPEZ, Appellant, v. LONE STAR BEER, INC. OF CORPUS CHRISTI, Appellee.
• Court: Texas Court of Appeals

Page 774

465 S.W.2d 774

Trinidad R. LOPEZ, Appellant, v. LONE STAR BEER, INC. OF CORPUS CHRISTI, Appellee.

No. 584.

Court of Civil Appeals of Texas,

Corpus Christi.

March 18, 1971.

Rehearing Denied April 15, 1971.

Edwards & DeAnda, William R. Edwards, Corpus Christi, for appellant.

Keys, Russell, Watson & Seaman, M. W. Meredith, Jr., Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is an appeal from a take nothing judgment rendered after a jury trial against Trinidad R. Lopez, plaintiff below and appellant herein, in favor of Lone Star Beer, Inc. of Corpus Christi, defendant below and appellee herein. The parties will be referred to here as they were in the trial court.

Plaintiff sued defendant to recover damages for personal injuries sustained by him on October 14, 1968, when a truck, owned by defendant and operated by its employee, Joe Martinez, backed into him.

In view of both law and factual questions presented in this appeal, a somewhat detailed statement of relevant facts is necessary .

On the day of the injury, plaintiff was working as a construction worker in the repair of a portion of Tarlton Street, in the city limits of the City of Corpus Christi, Texas. At that time he was employed by Asphalt Paving and Construction Company as a cement finisher. Previous to the accident, the City of Corpus Christi had awarded a contract to plaintiff's employer for the rebuilding of that portion of Tarlton Street between Greenwood Avenue on the west and Port Avenue on the east, a distance of 4 or 5 city blocks. The contract provided for the rebuilding of the street itself and the installation of curbs, gutters and sidewalks.

Tarlton Street is 44 feet wide and runs in an east-west direction and is intersected on the west by Greenwood and on the east by Port. It is a two-way street; the south half carries eastbound traffic and the north half carries westbound traffic. There are several other streets in between Greenwood and Port that intersect Tarlton, including MacArthur Street which runs in a north-south direction. Barricades of the 'sawhorse' style were in place in the south half of Tarlton at its intersection with Greenwood and also at its intersection with Port. There were no barricades at the entrance to Tarlton from any of the intersecting streets between Greenwood and Port. These barricades did not close Tarlton Street to vehicular traffic nor did they restrict such traffic to any particular part of the street, such as the south or north halves. They simply put the public on notice that street construction work was in progress. There was no marked center line in Tarlton Street on the day of the accident as the roadbed of the street was in rough caliche all the way from Port to Greenwood. The curbs and gutters were almost finished and work was progressing in the construction of sidewalks. That portion of Tarlton then under construction and repair is, for the most part, in a residential area. Sunset Drive-Inn is located on the north side of Tarlton at its intersection with Greenwood. There is a driveway from Sunset Drive-Inn into Tarlton and also a driveway into Greenwood.

On the day of the accident, the weather was clear although rain had fallen two or three days before. Both plaintiff and the driver of defendant's truck were lawfully in the construction area at the time of plaintiff's injury.

Plaintiff was authorized by his employer to use his own personal pickup truck on the job and was reimbursed for expenses incurred. He was using this pickup truck within the scope of his employment at the time of his injury.

Immediately preceding the accident, plaintiff and his crew were building forms for a portion of the sidewalk at a point one or two blocks east of the intersection of Tarlton and Greenwood. Noting that sand was needed, plaintiff and two helpers got into the pickup and drove west on Tarlton to a sandpile that had been stockpiled in a private driveway on the south side of Tarlton at a point 80 to 90 feet east of its intersection with Greenwood and diagonally across the street from the Sunset Drive-Inn driveway. The pickup was loaded with sand and its cargo was delivered to the site where the sidewalk construction was in progress. Plaintiff and his two helpers then returned to the sandpile for another load. He backed his pickup to the south curb of Tarlton with its rear wheels touching the curb and parked perpendicular to the street. His helpers began loading sand from the sandpile. In such parked position, the front of the pickup extended out into the south half of Tarlton. Plaintiff then discovered that his pickup's engine was overheating. He walked over to a vacant lot near the sandpile, picked up a can, walked to the curb, filled the can with water from a low place, went to the front of his pickup, raised the hood, and started pouring water into the radiator of his pickup. At this time, plaintiff was facing south with his back to Sunset Drive-Inn. While he was so engaged in pouring water into the radiator and in such position, he was struck from the rear by defendant's truck which backed into him from its parked position on the Sunset Drive-Inn's driveway. Plaintiff's leg was caught between the rear of defendant's truck and the front bumper of his pickup, was crushed, and was later amputated.

During these same several minutes immediately preceding the accident (which occurred at about 3 o'clock in the afternoon), Joe Martinez, accompanied by his helper, Joe Cantu, both of whom were employees of defendant, drove a truck belonging to defendant into the construction area of Tarlton. The truck driver, Martinez, entered Tarlton from MacArthur Street, which is two or three blocks east of Greenwood. Their purpose was to deliver beer to Sunset Drive-Inn. Both knew that Tarlton was under construction and both knew of the barricades. As they proceeded west along Tarlton, both Martinez and Cantu saw a pickup truck, a cement truck, and four or five men working, positioned about one and a half blocks east of Sunset Drive-Inn. Upon reaching the Drive-Inn, Martinez turned off of Tarlton and entered the driveway that connected the Drive-Inn with Tarlton. This driveway to the Drive-Inn runs in a north-south direction, is 36 feet wide, and the south line of the Drive-Inn building is 54 feet north of the north curb of Tarlton. The west boundary of the driveway is 42 feet east of Greenwood. Other cars were parked on the driveway that denied Martinez sufficient space to park defendant's truck entirely thereon. Martinez parked the truck at an angle to Tarlton, with the front part of the truck on the driveway and with the rear part extended out into the north half of the street. The record does not indicate just how far the rear end of the truck projected out into Tarlton. There is another driveway west of Sunset Drive-Inn that connects its parking area with Greenwood but the record does not indicate or show its measured location. The truck remained in this parked position for five or six minutes, during which time its rear blinker lights were flashing . It was during this interval that plaintiff drove up from the sidewalk construction area where he had been working and backed his pickup into the south curb of Tarlton where sand had been piled into a stockpile in a private driveway 10 feet wide; the west line of this driveway is 80 feet east of Greenwood. The pickup was parked at a point slightly east of the east line of the Drive-Inn's driveway into Tarlton; the east line of the Sunset Drive-Inn's driveway is 78 feet east of Greenwood. When Martinez and Cantu finished filling their customer's order, they got in their truck and Martinez began backing the truck into Tarlton, cutting the wheels slightly to the right, and continued backing until the truck struck appellant.

The exact point of impact, where defendant's truck backed into plaintiff, was not established, but it was established that such point of impact was in the south one half of Tarlton Street; it appears to be between 5 and 11 feet south of the center of the street. A plat of the area, not, however, drawn to scale, showing pertinent locations of driveways, the barricade at the intersection of the two streets, and the positions of the pickup and truck at point of impact, is incorporated herein, an follows:

In answer to special issues, the jury found in substance (1) that Joe Martinez, the driver of the truck and an employee of defendant, had failed to keep a proper lookout; (2) that such failure was a proximate cause of the accident; (3) that the failure of Joe Cantu, Martinez' helper and also an employee of appellee, to direct the backing of the Lone Star Truck from outside the cab of the truck was negligence; (4) that such negligence was a proximate cause of the accident; (5) that plaintiff failed to keep a proper lookout; and (6) that such failure was a proximate cause of the accident. The jury awarded plaintiff actual damages in the amount of $42,000.00, past medical expenses in the amount of $9,266.25 and future medical expenses in the amount of $7,000.00. Upon receipt of this verdict, the trial court entered a judgment that plaintiff take nothing. Plaintiff has duly and timely perfected an appeal to this Court.

The findings against defendant made by the jury in response to Special Issues 1--4, both inclusive, are not questioned in this appeal. Plaintiff's recovery against defendant was defeated only because of the jury findings on Special Issues 5 and 6.

We shall first consider plaintiff's First through Twelfth Points of Error, whereby, in essence, he complains of the definitions of 'ordinary care', 'negligence' and 'proximate cause', submitted by the trial judge in his charge to the jury, and of the refusal by the trial judge to submit the definitions and instructions requested by him. The charge contained the following standard definitions:

'II.

By the term 'ordinary care,' as used in this charge, means that degree of...