McCullom v. McClain, 4669

• Decision Date: 31 December 1949
• Docket Number: No. 4669,4669
• Citation: 227 S.W.2d 333
• Parties: McCULLOM v. McCLAIN et al.
• Court: Texas Court of Appeals

Page 333

227 S.W.2d 333

McCULLOM v. McCLAIN et al.

No. 4669.

Court of Civil Appeals of Texas, El Paso.

Dec. 31, 1949.

Rehearing Denied Jan. 25, 1950.

Smith & McIlheran, Weslaco, Oxford & Ramsour, Edinburg, for appellant.

Smith & Oakleaf, McAllen, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of a district court of Hidalgo County, 92d Judicial District. It was an action of Ted McCullom as plaintiff to recover damages for personal injuries growing out of a collision between a motorcycle operated by plaintiff and a truck operated by defendant Warren E. McClain, as employee of the defendant H. E. McClain.

It is undisputed that the accident occurred on or about October 24, 1947. Plaintiff McCullom was riding a motorcycle proceeding west on Highway 83 between the towns of Pharr and McCallum, Texas. Defendant Warren McClain was operating his father's truck and entered Highway No. 83 from a side street, intending to proceed east thereon, and collision occurred. Plaintiff alleged several acts of negligence on the part of defendant Warren McClain. McClain among other defenses plead that plaintiff approached the intersection at a high and dangerous rate of speed, and in so doing was guilty of negligence; that he was operating the motorcycle at a rate of speed in excess of 60 miles per hour; that such unlawful rate of speed was the proximate cause of the accident. Contributory negligence was plead in several other respects.

The case was submitted to the jury on special issues; the jury found defendant guilty of negligence proximately causing the serious injuries to the plaintiff, and that he had suffered damage in the sum of $4062.50. Special Issue No. 5 was as follows: 'Do you find from a preponderance of the evidence that the plaintiff Ted McCullom on the occasion in question drove the motorcycle at a speed in excess of 60 miles an hour while within a distance of 300 yards from the place of the collision?' The issue was answered in the affirmative. No. 6 was as follows: 'Do you find from a preponderance of the evidence that such speed in excess of 60 miles an hour, if any you have found in response to the foregoing question, on the part of plaintiff Ted McCullom was the proximate cause (as that term is heretofore defined) of the collision in question?' The answer was in the affirmative. In response to questions Nos. 7, 8 and 9 the jury found that just prior to the collision the plaintiff was operating the motorcycle at a dangerous and excessive rate of speed within a distance of 300 yards of the place of the collision; that same was negligence and the proximate cause of the collision in question. Plaintiff and defendants each moved for judgment on the verdict. The court granted defendant's motion and entered judgment in their favor. Plaintiff filed a motion for new trial, same was overruled, and this appeal was perfected therefrom by plaintiff.

The findings in favor of plaintiff it is conceded would support a judgment but for the findings as to contributory negligence. The appellant vigorously contends that the findings as to contributory negligence are insufficient to support a judgment in favor of defendants; that the court erred in failing to sustain his motion for a judgment.

Beyond any question it is negligence per se to operate a motor vehicle over and along a public highway in this State at a rate of speed greater than 60 miles per hour. Sec. 8, Art. 827a, Vernon's Annotated Penal Code. If the party so offending is injured as a proximate result of such unlawful rate of speed, his own negligence contributes to his injuries. Appellant contends that the operation by plaintiff of his motorcycle at a rate of speed greater than 60 miles per hour 300 yards from the point of contact would not be contributory negligence, because, we presume, that within 300 yards it could be brought under control. This is not the proper construction of the content of issue No. 5. Issue No. 5 was did he operate it within a distance of 300 yards from the place of the collision? An affirmative answer would have been justified if at any point within a distance of 300 yards from the point of the collision the motorcycle was operated at a rate of speed 60 miles per hour. Appellant in his brief states as follows: 'The plaintiff did not object to the submission of these issues for the very simple reason that they were immaterial. Suppose the Court had asked the jury if the Plaintiff was wearing a red shirt or a green shirt at the time of the accident?' the idea being, it is thought, that the defensive issues were immaterial and if found in favor of defendant, insufficient to support a judgment in their favor. In this we think he is in error; the issues found in favor of defendant amply supported the judgment rendered. Some of them might be subject to criticism. The time, however, to have done this was before the charge was submitted to the jury. Plaintiff was most certainly guilty of negligence per se if on the occasion in question he drove his motorcycle at a rate of speed in excess of 60 miles per hour. If driving his motorcycle in excess of 60 miles per hour 300 yards from the point of contact could not have been a proximate cause of the collision, then from the finding of proximate cause it must be inferred that he was operating same at such speed within less than 300 yards from the point of the collision. The purpose of rules requiring a party to except to the charge is to give the court an opportunity to correct any errors in the submission and to correct errors inadvertently made, to the end that the case be fairly submitted. In our opinion these charges substantially submitted the defenses plead by the defendants; plaintiff not having complained in the trial court as to their form is not entitled to complain here. By Texas Rule of Civil Procedure No. 272 the parties are given a right to except to the court's charge. By Rule 274, a party excepting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction on account of any defect, omission or fault in pleading shall be deemed waived unless specifically included in the objection. See Annotations under Rule 274, Shafter Annotated Rules of Civil Procedure, p. 199. See also Southwestern Hotel Co. v. Rogers, Tex.Civ.App., 183 S.W.2d 751, affirmed 143 Tex. 343, 184 S.W.2d 835.

When defendant H. E. McClain was on the stand being interrogated in regard to the...