Lynch v. McLendon, 3297
| Decision Date | 06 October 1955 |
| Docket Number | No. 3297,3297 |
| Parties | W. P. LYNCH, Appellant, v. Lois A. McLENDON et al., Appellees. |
| Court | Texas Court of Appeals |
H. W. Allen, Hamilton, for appellant.
Fred Red Harris, Hico, for appellees.
This is a collision case. Appellees sought recovery for personal injuries and property damage resulting from the accident. The jury found (1, 2 and 3) that defendant failed to apply his brakes immediately prior to the collision, and that such failure was negligence and a proximate cause of the collision; (4) that the failure of the defendant to sound his horn under the circumstances was not negligence; (6, 7, 8 and 9) that appellees' car was driven into the intersection first and that the defendant failed to yield the right-of-way to appellees' car after entering the intersection, and that such failure was a proximate cause of the collision, and that appellant Lynch had not first entered the intersection on the occasion of the collision; (11, 12 and 13) that the driver of appellees' car failed to keep a proper lookout for approaching vehicles entering at the intersection at the time the collision occurred, and that such failure was negligence, but that such negligence was not a proximate cause of the collision; (14) that the driver of appellees' car did not fail to apply the brakes before reaching the intersection; (17) that the driver of appellees' car immediately prior to the accident was not driving on the left hand side of the street; (20) that the driver of plaintiff's car did not fail to have it under proper control at the time; (23) that the driver of appellees' car was not driving at an unreasonable or excessive rate of speed under the circumstances; (26) that the collision was not the result of an unavoidable accident; (27) that appellees suffered damages as a direct and proximate result of the negligence of defendant and they awarded to appellees the sum of $369.36 for damages done to the car; (29) they awarded to the appellee Linda McLendon the sum of $35.50 and appellee Lois A. McLendon the sum of $107 and appellee Floy McLendon the sum of $57.50. The judgment followed the verdict.
Appellant seasonably filed motion to set aside the verdict on special issues and also motion for judgment non obstante veredicto, and each of these motions was overruled. Thereafter appellant filed motion for new trial, which was overruled, and he perfected his appeal to this court.
The judgment is here assailed on one point. It is: 'The error of the trial court in overruling defendant's motion for judgment because the driver of plaintiffs' car was guilty of contributory negligence as a matter of law, in failing to keep a proper lookout for approaching vehicles entering at the intersection, and upon the undisputed facts the same was a proximate cause of the collision in question.'
Appellees' reply is substantially to the effect that this being a collision case and the jury having convicted the appellant of negligence in several respects, and found that each was a proximate cause of the accident and injuries, and although the jury found that the driver of appellees' car failed to keep a proper lookout and that such failure was negligence, but having found that such negligence was not a proximate cause of the accident, the court entered the correct judgment.
A short statement is necessary. This accident happened in the town of Hico, Hamilton County between 9:30 and 10:00 a. m. on July 11, 1954. The collision occurred at the intersection of North Mesquite Street, which runs north and south, and Fourth Street, which runs east and west. There was neither pleading nor proof that either North Mesquite or Fourth Street was a through highway, nor that there were any stop signs. Appellant in his brief says that the streets were of 'equal dignity'. Immediately before the accident appellant was operating his car on Fourth Street, traveling in a westerly direction, and appellees were operating their car on North Mesquite, traveling in a southerly direction. Mesquite was a paved street and Fourth Street was a graveled street, and the right-of-way of each was 24 feet in width. Testimony was tendered to the effect that the point of impact was almost in the exact center of the intersection.
As we understand appellant's position, it is to the effect that, considering...
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