Meinen v. Mercer

• Decision Date: 15 April 1965
• Docket Number: No. 63,63
• Citation: 390 S.W.2d 36
• Parties: Leon W. MEINEN et ux., Appellant, v. Jack Edward MERCER, Appellee.
• Court: Texas Court of Appeals

Page 36

390 S.W.2d 36

Leon W. MEINEN et ux., Appellant, v. Jack Edward MERCER, Appellee.

No. 63.

Court of Civil Appeals of Texas, Corpus Christi.

April 15, 1965.

Rehearing Denied May 13, 1965.

Ben L. Adams, Jr., and Warren L. Eddington, of Adams, Eddington, Zimmerman, Friloux & Bobbitt, Houston, Pollan & Nicholson, Rosenberg, for appellant.

Howell E. Stone, of Talbert, Giessel, Cutherell & Barnett, Houston, for appellee.

SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered against appellants, Leon Meinen and his wife leslie Meinen, who were plaintiffs in the trial court, and in favor of appellee, Jack Mercer, who was the defendant therein.

The Meinens brought this suit to recover damages for injuries sustained as a result of Mercer driving his vehicle into the rear end of their car while it was stopped at an intersection red light stop signal. Trial was to the court and jury. Since Mercer was a minor at the time of the accident and the trial, he was represented by a Guardian ad Litem appointed by the court as well as by other counsel who appeared for him.

The court submitted fifteen special issues to the jury, the first eleven of which related to issues of liability and the last four to damages. Special issues 1 through 8 involved Mercer's alleged conduct, in substance, as follows: (1) That he followed the Meinen car too closely; (3) that he failed to keep a proper lookout for vehicles ahead of him; (5) that he was driving his car at an excessive rate of speed; and (7) that he failed to make a timely application of his brakes; issues 2, 4, 6 and 8 were proximate cause issues conditionally submitted in connection with the above-mentioned issues and were not answered because the jury did not answer any of the issues upon which they were predicated favorably to the Meinens. Special Issue 9 inquired about the alleged failure of Mr. Meinen to keep a proper lookout on the occasion in question and was answered favorably to appellants. Issue 10, inquiring as to proximate cause, conditionally submitted in connection with Issue 9, was not answered. By its answer to Special Issue 11, the jury found that the occurrence in question was the result of an unavoidable accident. By its answers to special issues 12 through 15, the jury found the Meinens' damages to be an aggregate of $6,228.00.

The Meinens assert seven points of error. Points I through V allege that the jury findings in answer to special issues 1 through 8 and on Issue 11 are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Point VI complains of the action of the trial court in overruling appellants' motion for judgment non obstante veredicto. Point VII complains of the overruling of appellants' motion for new trial.

The basic facts are undisputed. On Sunday, March 26, 1961, shortly after 11 o'clock, A.M., the Meinens departed from their home in Houston, Texas, in their new Pontiac Tempest automobile, on a trip to Archer, Texas, with Mr. Meinen driving and his wife sitting in the right front seat. They proceeded in a westerly direction on U. S. Highway 59 and as they approached its intersection with Spur 58 in Sugarland, Texas, the electric signal light there turned to red. Mr. Meinen stopped the car pursuant to said signal and it was sitting still when the vehicle driven by Jack Mercer, who was then 17 years of age, struck it from the rear and knocked it through the intersection some 40-60 feet. The Meinens did not see the Mercer car until after the impact and all of the testimony as to what happened immediately prior to the collision comes from Jack Mercer, the appellee, who testified when called by appellants as their first witness and later as a part of his defense.

Jack Mercer testified, when he first took the stand, in substance, as follows: That on the date in question he left his home in Sugarland, Texas, drove down Main Street, stopped at the intersection of said street with U. S. Highway 59, and then turned to his right, or toward the west on said highway, at a point approximately 125 yards, or 375 feet, from the place where the collision thereafter occurred, at which last-mentioned point there is a left turn lane and two lanes for westbound traffic. Mercer said he was travelling about 30 miles an hour when he saw the signal light at the intersection of U. S. Highway 59 and Spur 58 change from green to amber, at about 25 miles per hour when the light changed from amber to red, and at about 20 miles per hour when his car struck the Meinens' car. Mercer further said that it had been raining most of the day and the highway was slick. It was not raining at the time of the collision and he was not operating his windshield wipers on said occasion. Mercer said he first applied his brakes after the signal light turned red when he was about 50 feet from the Meinen car. He first observed the Meinen car after he had applied his brakes and his car started sliding. He said he was familiar with the said intersection, had travelled over it many times, and knew that he had to stop for the red light on the occasion in question. When asked why he did not stop, he said, 'Well, the first time I applied my brakes, my car fishtailed, and I let up, and when I stepped down all the way, my power brakes--the wheels locked.'

When he took the witness stand the second time as a witness in his own behalf, Mercer testified, in substance, as follows: When he turned his car on to U. S. Highway 59 he drove it directly to the lane in which the collision later occurred. At that time he did not observe the Meinen vehicle. He explained his use of the term 'fishtail' as follows: 'Well, the first time I stepped on my brakes, is when I saw the light turn red, my car kind of slid, the back end of it slid around, and then, I let up on my brakes, and stepped on them again, that is when I started sliding.' Mercer testified further as follows:

'Q. Now, then, why didn't you see that the road was completely blocked up there?

'A. I can't answer that, I don't know.

'Q. Where you looking?

'A. Evidently I wasn't looking right straight ahead, I don't remember--I don't remember seeing the Meinen car until I hit it.

'Q. If you would've looked straight ahead, if you would've looked straight at the traffic control signal, you said you would've saw that?

'A. Yes, sir.

'Q. And you said that you saw these two cars on the right, and two cars on the left?

'A. I saw them after I noticed them--after I started sliding, I noticed the Meinen car after I started sliding, but when I turned on the highway, I did not see the Meinen car. I did not see them come to a stop.

'Q. Well, when you turned on the highway, did you see that the road was blocked there in front of you?

'A. No, sir.'

On cross-examination Mercer conceded that he saw the caution light of the signal at the intersection when he was about 90 yards away from it and that if he had taken his foot off the accelerator his car would have come to practically a complete stop without applying his brakes.

Disposition of this case will be expedited by first considering appellants' Point VI under which it is contended that the trial court erred in overruling the Meinens' motion for judgment non obstante veredicto. We sustain this point on the basis that the evidence conclusively established that Mercer failed to keep such proper lookout for other vehicles ahead of him proceeding in a westerly direction and that he failed to make timely application of his brakes on the occasion in question as would have been done by a person of ordinary prudence and that such negligence in each instance was a proximate cause of the collision with the Meinen car. Under such conditions the issue of unavoidable accident was not in the case and the jury finding as to same may properly be disregarded.

In Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.1951, n. w. h., opinion by Norvell, J.) a rear-end collision case in which the Court of Civil Appeals held that negligence and proximate cause were conclusively established against the driver of the vehicle approaching from the rear, at page 246 of the opinion, the court said:

'It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of neglignece proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.'

In the cited case the jury had found that the action of the driver of a third automobile in crowding defendant from the right was the sole proximate cause of the collision between the automobile of the defendant and that of the plaintiffs. At page 246 of the opinion, the court said:

'Automobile drivers on city streets must for their own safety necessarily notice cars which drive along side them, but this circumstance cannot excuse them from failing to heed traffic lights and see vehicles immediately ahead of them. Even if the actions of the third driver be considered a proximate cause of the collision, it can not be reasonably maintained that such actions constituted the sole proximate cause thereof. Under the facts of this case, it is conclusively established that defendant was negligent and that such negligence was a proximate cause of the collision. In applying the standard of a 'person of ordinary prudence,' the discretion or authority of a jury is admittedly extensive, but it is not without limit. This creature of the law and standard of comparison must conform to a pattern of behavior in keeping with the words used to describe him. He must be law-abiding and can not be wholly imprudent.'

In caraway v. Behrendt, 224 S.W.2d 512 (Tex.Civ.App.1949, n. w. h.) at page 514 of the opinion, the court said:

'The rule is well stated in Vol. 2 of Blashfield's Cyclopedia of Automobile Law, and Practice, Perm. Ed., § 942, p. 94, which reads as...