Malone v. City of Plainview, 5005.

• Decision Date: 20 March 1939
• Docket Number: No. 5005.,5005.
• Parties: MALONE et al. v. CITY OF PLAINVIEW.
• Court: Texas Court of Appeals

127 S.W.2d 201

MALONE et al. v. CITY OF PLAINVIEW.

No. 5005.

Court of Civil Appeals of Texas. Amarillo.

March 20, 1939.

Rehearing Denied April 17, 1939.

Appeal from Hale County Court; H. M. LaFont, Judge.

Action by F. B. Malone and others against the City of Plainview for damages to an automobile, wherein defendant reconvened for damages to a truck. From a judgment denying recovery, the plaintiffs appeal.

Affirmed.

Griffin & Morehead, of Plainview, for appellants.

Dan M. Cook, of Plainview, for appellee.

STOKES, Justice.

This is an action for damages to an automobile belonging to appellant, Dr. F. B. Malone, alleged to be the result of a collision between the automobile and a truck belonging to appellee, City of Plainview. Appellant, Texas National Insurance Company, carried a policy of insurance on the automobile and, under the terms of the policy, it paid to Dr. Malone the damages, less $50 deductible under the terms of the policy; took from him an assignment of the cause of action to the extent of the amount paid by it, and the Insurance Company, therefore, joined Dr. Malone as plaintiff in the suit.

The record shows that on the 15th of April, 1936, about nine o'clock A. M., Dr. Malone, with his father as a passenger, was traveling from his home at Lubbock to Amarillo for the purpose of attending a session of the Medical Association. In passing through the city of Plainview, he traversed Columbia Street, which is the principal highway through Plainview from Lubbock to Amarillo. A short distance before reaching Third Street, which crosses the highway at right angles, S. E. Bolles, an employee of the City Water Department of appellee, emerged from the east on Third Street, intending to turn South on the highway. Dr. Malone was traveling north at the rate of forty-five miles an hour and when he observed the truck approaching the highway from the east, thinking it would stop when it reached the highway, he veered his car to the left so that the left wheels of his car passed over the center of the highway some twenty inches. Instead of stopping at the highway, however, Bolles, the driver of the truck, proceeded to near the center of the highway and then turned to his left. When he made this turn to proceed south, according to his testimony, he saw Dr. Malone approaching from that direction at a high rate of speed and observed he was on the west side of the center of the pavement. Bolles immediately turned his truck sharply to the left. About the same time Dr. Malone veered his car back to his right, and the front end of his automobile came into collision with the front end of the truck at or near the eastern edge of the pavement.

Appellants alleged numerous acts of negligence of the driver of the truck, resulting in alleged damage to the automobile of $428.12, for which they sought recovery, and appellee reconvened for an alleged damage to its truck of $141.53, for which it sought recovery against Dr. Malone. In view of the findings of the jury on the issues submitted by the court, however, it will not be necessary to discuss any of the allegations of negligence except the question of discovered peril, which was not submitted to the jury.

The case was submitted to a jury upon special issues, in answer to which the jury found both parties guilty of negligence and that the negligence of both parties was a proximate cause of the damage which resulted to both vehicles. The court thereupon rendered judgment to the effect that neither party should recover against the other, decreeing the costs against appellants.

Appellants objected to the charge of the court upon the ground that it failed to submit to the jury the question of discovered peril and, the objections being overruled, they requested the court to submit to the jury a number of special issues, asking the jury, in substance, if they found from a preponderance of the evidence that Dr. Malone was in a position of peril just prior to the collision; whether or not the driver of the truck discovered such peril; whether or not his perilous position was discovered in time to avoid the collision by the exercise of ordinary care; whether or not the driver of the truck failed to exercise ordinary care in using all means at his command, consistent with the safety of himself and the city's property, to avoid the collision, and whether or not such failure, if any, was a proximate cause of the collision. The court refused appellant's request and his action in that regard is assigned as error. While there are other assignments presented in the brief, as we view the record this assignment raises the controlling issue in the case.

The principal issue in most every case of discovered peril is whether or not the perilous position of the injured party is discovered by the person sought to be held responsible for the injury at such time as he could have avoided the injury by the use of the means at hand. The first question necessary to be decided in this case is when Dr. Malone's position first became perilous. If he had remained on the east side of the pavement, under the circumstances as they were afterwards revealed, he would not have been in a perilous condition at any time because it developed that Bolles' original purpose was to remain on the west side of the highway and proceed south. If,...