Mid-Tex Development Co. v. McJunkin

• Decision Date: 24 May 1963
• Docket Number: MID-TEX,No. 16169,16169
• Citation: 369 S.W.2d 788
• Parties: DEVELOPMENT COMPANY, Inc., Appellant, v. Mrs. Martha MeJUNKIN, a Widow, et al., Appellees.
• Court: Texas Court of Appeals

Page 788

369 S.W.2d 788

MID-TEX DEVELOPMENT COMPANY, Inc., Appellant, v. Mrs. Martha MeJUNKIN, a Widow, et al., Appellees.

No. 16169.

Court of Civil Appeals of Texas, Dallas.

May 24, 1963.

Rehearing Denied June 28, 1963.

Malone, Seay & Gwinn, Strasburger, Price, Kelton, Miller & Martin, Eugene Jericho, Donald V. Yarborough, Dallas, for appellant.

Robert C. Johnson and Piranio & Fults, Dallas, for appellees.

DIXON, Chief Justice.

This is an appeal from a judgment for damages growing out of a collision involving three motor vehicles at the intersection of Beckley Boulevard and Camp Wisdom Road within the city limits of Dallas, Texas.

Appellee Mrs. Martha McJunkin, a widow, sued appellant, Mid-Tex Development Company, Inc., hereinafter called Mid-Tex, and Vernon Howard Speer. Each of the defendants filed a cross-action against the other.

A jury found that Neal, the driver of the Mid-Tex truck, did not fail to keep a proper lookout, did not fail to make timely application of the brakes, did not drive faster than would be prudent under the circumstances and did not fail to yield the right of way to Speer. However, the jury found that the Mid-Tex driver failed to make a turn to his left which a person of ordinary prudence would have made under the circumstances, which failure was a proximate cause of the collision.

As to Speer the jury found that he was not driving too fast. But it found that he entered the intersection when the truck was so close as to constitute an immediate hazard, and that he failed to keep a proper lookout, failed to apply his brakes, failed to yield the right of way to the truck, which act and failures were each a proximate cause of the collision, but that none of them was the sole proximate cause of the collision.

The trial court refused to submit the defendants' requested contributory negligence issues in regard to Mrs. McJunkin, the plaintiff.

After return of the jury verdict a joint and several judgment for $26,000.00 was rendered in favor of Mrs. McJunkin against Mid-Tex and Speer. A take nothing judgment was rendered against each of the defendants on its cross-action against the other.

Mid-Tex has filed a supersedeas bond in the sum of $30,000.00 payable to Mrs. McJunkin and Speer. The latter has not filed either a cost bond on appeal or a supersedeas bond. Nevertheless in his brief Speer has presented several cross-assignments of error and prays that the entire case, including his cross-action against Mid-Tex be remanded for another trial.

Mid-Tex has filed a motion asserting that Speer's cross-assignments are not entitled to our consideration, and praying that we dismiss the appeal insofar as Speer attacks that portion of the judgment which provides that Speer take nothing by way of his cross-action against Mid-Tex.

Mid-Tex has appealed from the entire judgment, not merely from a part thereof. Since its supersedeas bond is payable to both Mrs. McJunkin and Speer, the latter is entitled to urge cross-assignments of error, though he did not file an appeal bond. Graham & Locke Investments v. Madison, Tex.Civ.App., 295 S.W.2d 234, 242; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427; 4 Tex.Jur.2d 464. Appellants' motion to dismiss part of the appeal is overruled.

FACTS

At the time of the collision about 5:00 o'clock P.M. on February 24, 1960 both Beckley Boulevard and Camp Wisdom Road were covered with ice, snow and sleet.

Beckley runs in a general direction of north and south. Camp Wisdom Road runs in a general direction of east and west. The intersection is somewhat wider than either of the roads as it approaches the intersection. A short distance from the intersection Camp Wisdom Road divides on both east and west approaches, with a grass covered island separating its left and right lanes. Near the point of the division, at the time of the collision, there was a sign which read 'Keep Right'. Just ahead of the intersection was a stop sign.

On the occasion in question a large gasoline truck owned by Mid-Tex and being driven by its employee, Alden E. Neal, was proceeding north on Beckley. The road at that point is slightly uphill. Neal had delivered a tank of gasoline to La Grange, Texas and was returning to Dallas with his empty truck. The vehicle consisted of a 1953 International Truck Tractor and a Trailmobile Trailer weighing between 18,000 and 20,000 pounds.

Speer was driving his 1953 Morris automobile in an easterly direction on Camp Wisdom Road. His vehicle was a very small car of foreign make. Camp Wisdom Road is also slightly uphill as it approaches the intersection from the west. Mrs. McJunkin was proceeding south on Beckley in her 1949 Chevrolet automobile.

The testimony is not in accord as to the facts with reference to the collision itself. Neal says that Speer did not obey the stop sign facing him near the intersection, but came through without stopping, then made a left turn onto Beckley going north. There his Morris car started skidding and turning until it faced south. Neal is the only witness who so testifies. He says further that he started to turn to his left in order to avoid colliding with Speer's car, then changed and veered to the right, the left side of his truck collding with the left side of Speer's car.

Testimony in behalf of Speer is to the effect that Speer stopped at the stop sign on Beckley facing the intersection, but was unable thereafter to start forward because his wheels slipped on the ice. Twice he backed up to make a new try. The third time he went on into the intersection. He claims he had successfully made the left turn onto Beckley and was proceeding in a northerly direction a short distance north of the intersection when the Mid-Tex truck overtook him and ran into him, striking the side of his car.

S passenger in Speer's car testified that Speer's car did not start spining until it was hit by the truck. There were two other eye witnesses, neither of whom testified that Speer's car started to skid or spin before the collision.

Mrs. McJunkin was well over on her side of Beckley as she was proceeding south approaching the intersection. The collision between the huge truck and trailer and the tiny Morris automobile caused the two pairs of the truck tractor's rear wheels to become detached from the body of the tractor together with their axle, springs and spring hangers. The rear frame of the tractor then dropped to the ground, but the two pairs of detached wheels rolled onward and across the road, striking Mrs. McJunkin's Chevrolet automobile on its left side. The car was greatly damaged and Mrs. McJunkin suffered serious injuries.

This narrative of the facts necessarily will be amplified later in connection with our discussion of appellant's points on appeal.

OPINION

In its first two points Mid-Tex says that the court erred in submitting special issues Nos. 7 and 8, in answering which the jury found that (7) Neal failed to make 'that turn to his left which a person of ordinary prudence would have made under the same or similar circumstances,' and (8) that such failure was a proximate cause of the collision. In its third point Mid-Tex says that the court erred in overruling its motion for judgment non obstante veredicto, or to disregard the jury's answer to issues Nos. 7 and 8.

There is ample evidence in the record to support the submission of the two issues. Beckley is wide enough to carry four lanes of traffic, two in each direction. The intersection is still wider. There is evidence that the Beckley part of the intersection is at least 270 feet long, the paved part is 50 feet wide at the south end; 45 feet wide at the north end; and 100 feet wide at a point between the two islands.

Neal testified that Speer was near the edge of the east shoulder of Beckley at the time of the collision. There is testimony that Mrs. McJunkin was well over to the right of Beckley looking south. Speer's Morris is a very small car. It is not near as wide as an ordinary car. There was room for the Mid-Tex truck to pass to the left between Speer's car and Mrs. McJunkin's car. Neal himself says that he started to turn to his left, but changed course and veered to his right. The first three points of appellant Mid-Tex are overruled.

Mid-Tex's fourth point asserts error because the court refused to submit the following issue: 'Do you find from a preponderance of the evidence, that Alden E. Neal, the operator of the Mid-Tex Development Company Truck at the time of the collision in question, was acting under an emergency?' Submission of the above issue was requested along with an appropriate definition of emergency and an issue inquiring whether after an emergency arose Neal did not exercise that degree of care which a reasonably prudent person would have exercised under the same and similar circumstances.

After a careful study of the record we have concluded that the court did not commit error in refusing to submit the requested issues.

Among the necessary elements of imminent peril, or emergency are these: (1) the condition must have arisen suddenly; (2) it must have arisen unexpectedly; (3) it must not have been proximately caused by the negligent act or omission of the person whose conduct is being inquired about; and (4) the conduct which would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate. International & G. N. R. E. v. Neff, 87 Tex. 303, 28 S.W. 283; Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545; Younger Bros. v. Ross, Tex.Civ.App., 151 S.W.2d 621; White v. Munson, 162 S.W.2d 429; Sam v. Sullivan, Tex.Civ.App., 189 S.W.2d 69; Garner v. Prescott, Tex.Civ.App., 234 S.W.2d 704; Ynsfran v. Burkhart, Tex.Civ.App., 247 S.W.2d 907; Goolsbee v. Tex. & N. O. R. R. Co., 150 Tex. 528, 243 S.W.2d 386; Havens v. Guetersloh, 255 S.W.2d 233; Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767; Union Transports, Inc. v. Braun, Tex.Civ.App.,...