Madara v. Marshall
| Decision Date | 14 December 1978 |
| Docket Number | No. 17252,17252 |
| Parties | Alicia MADARA, Appellant, v. R. D. MARSHALL, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Aldrich & Buttrill, Gerald H. Buttrill, Houston, for appellant.
Vinson & Elkins, Danny L. Van Winkle, Houston, for appellee.
This personal injury action is the result of an intersectional collision between two automobiles.
The defendant, driving his automobile in an easterly direction on Westheimer Road, was attempting to turn left onto River Oaks Blvd. The plaintiff was proceeding westerly on Westheimer. The following sketch indicates the scene of the accident.
In response to special issues the jury failed to find the defendant negligent in his speed, the application of his brakes, or his lookout, or that he had failed to yield the right-of-way. The jury found the plaintiff negligent in her speed, the application of brakes, in maintaining a lookout, and that she had failed to yield the right-of-way. It found the occurrence was proximately caused by her negligence in the application of brakes, in maintaining a lookout and in her failure to yield the right-of-way, and that 100% Of the negligence causing the accident was attributable to her. The jury failed to find that the plaintiff had been injured and it answered the damage issues with a zero.
The plaintiff contends in her first eight points of error that the jury's findings regarding the defendant's negligence are against the weight and preponderance of the evidence and that the evidence established the defendant's negligence as a matter of law.
The principal contention of the plaintiff is that the defendant violated the statutory duty of a driver intending to make a left turn at a controlled intersection to "yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard . . ." Article 6701d Section 72 Tex.Rev.Civ.Stat.Ann. Arguing that the defendant had the duty under this statute to determine by a proper lookout whether her vehicle was so close to the intersection as to constitute an immediate hazard, she contends that the defendant's own testimony shows he made no attempt to estimate her speed and that based upon his own estimate of her distance from the intersection at the time he began to make his turn, it should have been clear to him that he could not make the turn in safety.
The police were not called to the scene of the accident, and the only evidence regarding the accident is the testimony of the plaintiff, the defendant, and a third party, Mrs. Buck, who was called as a witness by the defendant. The plaintiff testified that her vehicle was hit on the driver's side, indicating that she was already in the intersection when the defendant began his left turn. However, her testimony is in this respect contradicted by testimony of the defendant and of Mrs. Buck to the effect the defendant's vehicle was almost clear of the intersection when it was struck on the right rear side by the plaintiff's automobile.
The defendant testified that he had seen the plaintiff's vehicle "a long time" before the accident occurred. Traffic on Westheimer was light at that time and the plaintiff's vehicle was the only car he observed in the whole block ahead of him. The first time he saw the plaintiff's vehicle it was 150 feet or more from the center of the intersection. When he got to the center of the intersection he looked at her vehicle and saw that she was "plenty far" from him and he didn't see "any danger whatever" in making the turn. When he began to make his turn, there was no one in front of him and he crossed the center line traveling at about five or six miles per hour. He pressed down on the gas pedal, picking up speed, and he had practically cleared her lane when the right rear of his automobile was struck by her vehicle.
Q And she was coming through the intersection this way and you all kind of met in the middle, didn't you?
A Well, I had practically cleared her lane. I don't think that my car was I may have cleared when she hit me. I know I wasn't more than six inches back in her lane when she hit the back of my car.
Q Now, didn't you testify earlier that once you started to make that turn that you never looked again at her vehicle?
A I didn't turn back and watch her, because I felt sure that I had a safe turn and I didn't see any use in turning around and watching her.
The third party witness, Mrs. Buck, testified that she was driving east on Westheimer, following the defendant's vehicle, when she saw him begin to make the left turn. She indicated that it was clear from the defendant's actions that he intended to turn left onto River Oaks Blvd. and that there was sufficient distance between his vehicle and the plaintiff for the turn to be made in safety. She estimated that the plaintiff's vehicle was traveling at a speed of around 35 miles per hour and that at the time the defendant began his left turn, the plaintiff's vehicle was about seven car lengths from the center of the intersection.
The plaintiff does not suggest how the speed of the defendant's vehicle could have contributed to the accident. Neither does she explain how any braking application by the defendant could have avoided the collision. Thus, the questions for determination are whether the failure of the jury to find that the defendant was negligent in maintaining a proper lookout and in failing to yield the right-of-way are against the great weight and preponderance of the evidence and whether such negligence was shown as a matter of law.
In making a left turn at an intersection, it is the duty of a driver to look for vehicles approaching from the opposite direction and to exercise due care in observing the speed and proximity of approaching vehicles so that he may determine whether such vehicles constitute an immediate hazard to his course of action. Day v. McFarland, 474 S.W.2d 946, 951 (). However, if the driver intending to make a left turn misjudges the speed of the approaching vehicle or its distance from the intersection, this does not necessarily establish a want of due care on his part. Boaz v. Whites Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 483 (1943). Thus, in the case at bar it was the plaintiff's burden to prove the defendant's negligence upon the common law standard of whether he acted as a reasonably prudent person under the circumstances existing at the time of the occurrence. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956).
Based upon the circumstances presented by the evidence the jury could have concluded that a reasonably prudent person exercising ordinary care would have decided, as did the defendant, that he could clear the intersection without danger of colliding with the...
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...judgment than that exercised by a reasonably prudent person. See Booker, 306 S.W.2d at 774. In Madara v. Marshall, 578 S.W.2d 787 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.), the court upheld the jury's failure to find negligence when a vehicle turning left collided with an a......
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