McElwee v. Rice

• Decision Date: 27 July 1962
• Docket Number: No. 3725,3725
• Citation: 359 S.W.2d 552
• Parties: Clifton L. McELWEE et al., Appellants, v. Mrs. Clara B. RICE, Appellee.
• Court: Texas Court of Appeals

Page 552

359 S.W.2d 552

Clifton L. McELWEE et al., Appellants, v. Mrs. Clara B. RICE, Appellee.

No. 3725.

Court of Civil Appeals of Texas, Eastland.

July 27, 1962.

Rehearing Denied Sept. 7, 1962.

Carl C. Chase, Corpus Christi, Ellis Clark, Rockport, for appellants.

Guy Allison, Corpus Christi, for appellee.

WALTER, Justice.

Clifton L. McElwee and wife and their minor daughter filed suit against Mrs. Clara B. Rice for damages resulting from an automobile collision.

Mrs. McElwee was driving her automobile in a northerly direction on Eleventh Street in Aransas Pass. Mrs. Rice was driving east on Wilson Street. The accident occurred about 11:00 o'clock in the morning at the intersection of Wilson and Eleventh Street. Mrs. McElwee approached the intersection at about 25 miles per hour. Mrs. Rice approached the intersection at about 5 miles per hour. She testified that she did not see the stop sign on her right as she entered the intersection nor did she see the McElwee car before the collision. The jury found that Mrs. Rice failed to keep a proper lookout as she entered the intersection and that this was a proximate cause of the collision. The jury also found Mrs. McElwee guilty of several acts of negligence and that each was a proximate cause of the collision. Based on the verdict, judgment was rendered that the plaintiffs take nothing. The court granted the minor plaintiff's motion for a new trial but overruled Mr. and Mrs. McElwee's motion for a new trial.

The adult plaintiffs have appealed, contending the court erred (1) in granting a partial summary judgment (2) in refusing to admit evidence relative to the stop sign (3) in refusing to admit in evidence photographs of the intersection showing the stop sign and (4) in refusing to admit evidence of Mrs. Rice's plea of guilty to a charge of running the stop sign. They also contend the verdict is contrary to the great weight and preponderance of the evidence.

In her motion for a partial summary judgment, Mrs. Rice alleged that the stop sign was illegally placed and maintained at the intersection and, therefore, she was under no obligation to obey it. The court held that the stop sign had been illegally erected and instructed appellants' counsel not to present evidence relative to the stop sign. Appellants then filed an amended petition which did not contain allegations that Mrs. Rice ran the stop sign.

Assuming, without deciding, that the court erred in granting the partial summary judgment and...