Minugh v. Royal Crown Bottling Co., 12641

Decision Date22 April 1954
Docket NumberNo. 12641,12641
Citation267 S.W.2d 861
PartiesMINUGH v. ROYAL CROWN BOTTLING CO.
CourtTexas Court of Appeals

Hyde, Barber & Shireman, Sam Jones, Jr., Kirkham & Graham, Corpus Christi, for appellant.

Lewright, Dyer, Sorrell & Redford, Corpus Christi, Kemper & Wilson, Houston, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Stanley B. Minugh against Royal Crown Bottling Company, seeking to recover damages allegedly sustained by him when a motorcycle which he was operating collided with a truck owned by defendant. The collision occurred at the intersection of State Highway 44 and a graveled way known as Hereford Road. The trial was to a jury and resulted in the jury finding, in answer to special issues submitted, that the driver of defendant's truck was guilty of negligence proximately causing the injuries complained of by Minugh, in attempting to make a left turn from a right-hand lane of a one-way two-lane highway, without giving any signal of his intention to do so. The jury also found, among other things, that plaintiff was guilty of contributory negligence in attempting to pass defendant's truck at a road intersection. Judgment was rendered that plaintiff take nothing, and Stanley B. Minugh has prosecuted this appeal.

This case heretofore reached this Court on an appeal from an order overruling a plea of privilege, Royal Crown Bottling Company v. Minugh, 244 S.W.2d 531, and upon a petition for a writ of mandamus, Royal Crown Bottling Company v. Smith, 254 S.W.2d 225.

In the mandamus proceedings we had before us whether the court erred in declaring a mistrial on account of an alleged conflict of the findings of the jury. We decided there was no irreconcilable conflict between the findings and held that judgment should be rendered on the verdict.

Appellant filed a motion in the trial court contending that there was no evidence in the record to sustain the findings of the jury that appellant was guilty of contributory negligence, and that Special Issues Nos. 12, 13 and 14 should be set aside and judgment rendered in his favor for the amount of damages found by the jury. Appellant further contends that these issues were not based upon any pleading of the appellee, and should be set aside for that reason. Appellant did not object to the submission of Issues Nos. 12, 13 and 14, because they were not based on the pleadings and therefore he will not now be heard to complain of the deficiency in the pleadings. Rules Nos. 272 and 274, Texas Rules of Civil Procedure; McCullom v. McClain, Tex.Civ.App., 227 S.W.2d 333; Scott v. Doggett, Tex.Civ.App., 226 S.W.2d 183; English v. Miller, Tex.Civ.App., 43 S.W.2d 642; Burlington Rhode Island Railroad Company v. Newsome, Tex.Civ.App., 219 S.W.2d 129; Railway Express Agency v. Baum, Tex.Civ.App., 250 S.W.2d 423; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979.

Both vehicles involved in this collision were traveling in a westerly direction on Highway 44. Highway 44 is a four-lane highway, with a wide island or esplanade separating the two lanes that carry traffic going in a westerly direction from the two lanes carrying east-bound traffic. At intervals there are cross-overs which permit traffic to go from one set of lanes to the other. Hereford Road intersects Highway 44 at right angles from the north but makes only a 'T' intersection and does not leave the highway on the south side. Just prior to the collision appellee's truck was proceeding along Highway 44 in a westerly direction in the extreme north, or right-hand lane. Appellant, also going in a westerly direction, was driving his motorcycle to the rear of the truck in the lefthand lane. The truck without warning made a left turn from the right-hand lane across the left-hand lane at the intersection of Hereford Road. Appellant was unable to avoid a collision with the truck and collided with its left rear. Appellant was attempting to overtake and pass the truck at or near the intersection, and had in fact sounded his horn indicating his intention to pass. Appellee contends that in so doing appellant was violating the law and was guilty of negligence as a matter of law, while appellant contends that in attempting to pass at the intersection he was not violating the law, but that the driver of appellee's truck was violating the law by making a left turn from the right-hand lane.

With reference to the conduct of appellee's agent, the jury found:

(1) That L. R. Barrett, the driver of the truck, approached the intersection involved in the right-hand lane of the traffic and made a left-hand turn from the right-hand lane of the highway into the intersection or cross-over.

(2) That such turn was a proximate cause of the injuries to appellant.

(3) That L. R. Barrett made such turn without making a proper signal for such turn.

(4) That such failure was a proximate cause of the injuries to appellant.

(5) That L. R. Barrett failed to keep a proper lookout.

(6) That such failure was a proximate cause of the injuries to appellant.

With reference to the conduct of appellant, the jury found:

(1) That immediately prior to the collision appellant did not fail to keep a proper lookout.

(2) That in attempting to pass appellee's truck appellant did not drive the motorcycle to the left side of the roadway of Highway 44, within 100 feet of its intersection with Hereford Road.

(3) That at the time of or immediately prior to the collision appellant was attempting to pass appellee's truck at or near the intersection of Highway 44 with Hereford Road. (Issue 12.)

(4) That such act was negligence. (Issue 13.)

(5) That such negligence was a proximate cause of appellant's injuries. (Issue 14.)

(6) That at or immediately prior to the time of the collision appellant was not driving the motorcycle at a faster rate of speed than a person of ordinary prudence would have driven it under the same or similar circumstances.

(7) That appellant did not fail to sound his horn.

(8) That appellant did not fail to make such application of the motorcycle brakes as a person of ordinary prudence would have made under the same or similar circumstances.

(9) That at or immediately prior to the time of the collision appellant was not following the appellee's truck more closely than was reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the conditions of the highway.

(10) That at or immediately prior to the time of the collision appellant was not driving the motorcycle without as much skill, qualification or experience as a person of ordinary prudence would have had before driving a motorcycle under the same or similar circumstances.

(11) That at or immediately prior to the time of the collision appellant did not fail to have the motorcycle under such control as a person of ordinary prudence would have had under the same or similar circumstances.

(12) That at or immediately prior to the time of the collision appellant did not carry a passenger on the motorcycle in such a manner as to interfere with its safe operation.

Thus it will be seen that the jury exonerated appellant of every possible act of negligence except that attempting to pass the...

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