Mobil Oil Co. v. Dodd

• Decision Date: 18 September 1975
• Docket Number: No. 1002,1002
• Citation: 528 S.W.2d 297
• Parties: MOBIL OIL COMPANY et al., Appellants, v. Albert A. DODD, Sr., Appellee.
• Court: Texas Court of Appeals

Page 297

528 S.W.2d 297

MOBIL OIL COMPANY et al., Appellants, v. Albert A. DODD, Sr., Appellee.

No. 1002.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 18, 1975.

Rehearing Denied Oct. 16, 1975.

Maurice E. Amidel, Dallas, for appellants.

Michael W. Perrin, Fisher, Roch, McLendon & Gallagher, Houston, for appellee.

OPINION

BISSETT, Justice.

This is a controlled traffic signal light intersection collision case. The action arose out of a right angle collision between a 1969 Plymouth automobile (car), owned and operated by Albert A. Dodd, Sr., and a 1968 Ford pickup truck (pickup) owned by Mobil Oil Corporation (Mobil) and operated by Rufus Haddon Hamilton, Mobil's employee.

Suit was instituted by Mr. Dodd on December 11, 1970 to recover damages for personal injuries allegedly sustained by him in the collision. Rufus Haddon Hamilton (who did not testify by deposition, or otherwise) died of March 12, 1971, from causes unrelated to the accident made the basis of this suit. Following a jury trial that began on January 25, 1975, judgment was rendered for plaintiff in the amount of $45,000.00, which included $2,000.00 for past medical expenses, $3,000.00 for future medical bills and $40,000.00 for personal injuries. The defendants, Mobil Oil Corporation and the administrator of the Estate of Rufus Haddon Hamilton, deceased, have appealed from that judgment. The parties to this appeal will be referred to as plaintiff and defendants, as they were in the trial court.

The jury found that on the occasion in question Mr. Hamilton entered the intersection when the traffic signal light facing him was red; that he was driving at a greater rate of speed than a person of ordinary care would have driven; that he failed to keep a proper lookout; that he failed to make a proper application of the brakes; and that each such act or failure was a proximate cause of the accident. The jury also found that plaintiff did not enter the intersection when the traffic signal facing him was red; that at the time the signal light facing plaintiff turned green, the pickup driven by Mr. Hamilton had not already entered the intersection; that plaintiff was not driving at a greater rate of speed than a person using ordinary care would have driven; and that plaintiff did not fail to make such application of the brakes as a person using ordinary care would have made. The jury, however, did find that plaintiff failed to keep a proper lookout, but further found that such failure was not a proximate cause of the accident.

Defendants urge four points of error. In their first three points complaint is made of the trial court's refusal to submit their requested Special Issues Nos. 20, 21 and 22. The requested issues would have inquired into whether the plaintiff failed 'to turn to the right before the occurrence in question' (No. 20); and, if so, whether 'such failure was negligence' (No. 21); and, in the event that such failure was negligence, whether 'such action was a proximate cause of the occurrence in question' (No. 22). They complain, in their fourth point, of the introduction into evidence of certain portions of a deposition. We first consider the first three points.

It is not necessary for the trial court to submit an issue on an undisputed fact. Rule 272, T.R.C.P.; Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.Sup.1971). In this case, the trial court was not required to submit Special Issue No. 20 to the jury. It is undisputed that plaintiff did not turn to the right, and it is conclusively shown by the evidence that there was no obstruction in the streets that prevented such a turn. Defendants' first point is overruled.

Defendants, among other special defenses, plead that plaintiff's failure 'to make such turning movements as would have been made by a person of ordinary care and prudence in the exercise of ordinary care to avoid colliding with the vehicle driven by Rufus Haddon Hamilton' constituted negligence which proximately caused the accident. Therefore, requested Special Issues Nos. 21 and 22 should have been submitted if they were raised by the evidence. Bell v. Campbell, 434 S.W.2d 117 (Tex.Sup.1968).

The collision occurred in Bay City, Texas, on March 18, 1970, at about 8:30 a.m., at the intersection of Avenue C and Seventh Avenue. The streets, in the vicinity of the intersection, are straight and level. The pavement, at the time of the collision, was dry, and the weather was clear. Avenue C runs north and south and has two lanes of traffic; the west lane carries southbound traffic and the east lane carries northbound traffic. Seventh Avenue runs east and west and has four lanes of traffic; the north two lanes carry westbound traffic and the south two lanes carry eastbound traffic.

The intersection is controlled by a traffic signal light. Immediately preceding the accident, plaintiff was driving north in the east lane of Avenue C, and the pickup was proceeding east in the interior lane of Seventh Avenue. The collision occurred in the intersection. The right front of the pickup struck the left front side of plaintiff's car.

George F. Campbell, a passenger in the pickup who was called as a witness by the defendants, testified that Mr. Hamilton, immediately preceding the collision, was driving the pickup along Seventh Avenue at a speed of approximately 25 miles per hour. Mr. Campbell first saw plaintiff's car as it entered the intersection. He said that Mr. Hamilton applied his brakes after the pickup entered the intersection, and that the pickup laid down 15 feet of straight, heavy skid marks prior to impact. He placed the point of impact in the interior lane of Seventh Avenue for eastbound traffic and in the north lane of Avenue C, 'beyond (to the east of) the center of the cross street (Avenue C)', and next to the centerline of Seventh Avenue 'over half the width of a car from the centerline (of Seventh Avenue)'. He further testified that Mr. Hamilton did not 'blow his horn', because 'he did not have time' to do so.

Plaintiff testified that the traffic signal light was red as he approached the intersection; that he stopped in obedience to the red light; that he looked to the right and to the left; and that he saw the pickup at that time, when it was about a block away. He stated that when the signal light facing him turned green he proceeded forward, and as he started to enter the intersection the pickup was about half a block distant. His reply to the question why he did not wait until the pickup had cleared the intersection, was:

'I had the right-of-way. The light was green. I expected him to stop.'

When asked whether he could have turned to the right and avoided the collision, he answered:

'I don't think so'.

Plaintiff further testified that he proceeded from his stopped position into the intersection at a 'normal' rate of speed; that while he was so proceeding he saw the pickup 'just before it hit me', and he pushed the accelerator 'all the way down'; that the car 'probably' picked up speed, and was moving when it was hit by the pickup. Plaintiff also stated that he first realized that there was going to be a collision when he was about 'halfway in the intersection', and that there was practically no time available for him to do anything in an attempt to avoid the accident. Plaintiff's answers to questions concerning the length of time available for him to take evasive action after it became apparent to him that the pickup would strike his car were: 'none'; 'a very short space'; 'when I seen he wasn't going to stop, the collision had happened'; and an 'instantaneous snap of the finger period of time'. Those answers were not disputed by any testimony from anyone. Concerning distance, plaintiff estimated that the pickup was 'a couple of car lengths' away when he realized that a collision was imminent.

The speed in miles per hour of plaintiff's car as it moved forward into the intersection was not established. There is no evidence as to the length of a city block in Bay City, Texas, the length or width of either vehicle involved, the width of the intersection, or the width of either of the two streets or of the traffic lanes contained therein.

Defendants contend that the failure of plaintiff to turn to the right raised the issues of contributory negligence and proximate cause because it is undisputed that: 1) the intersection was without obstruction; 2) the damage sustained by each vehicle was slight; 3) plaintiff tried to speed up; 4) there were no other vehicles in the lanes of traffic in either street at or near the intersection at the time of the collision; 2) there were no parked vehicles on Seventh Avenue in the area of the intersection when the accident occurred; and 6) there was nothing which prevented plaintiff's turning to the right. Defendants argue that such undisputed facts furnish a basis from which the jury could reasonably have inferred, had the requested issues been submitted, that the accident could have been avoided by plaintiff had he made a 'slight turn to the right'. We do not agree with either the contentions or the argument.

The burden is on a defendant, if he will escape liability for his own negligent acts or omissions, to both plead the defense of contributory negligence and to prove the elements thereof. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942). Contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof. Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App.--San Antonio 1950, writ ref'd n.r.e.).

A person is not required to anticipate negligent or unlawful conduct on the part of another. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955); Bodine v. Welder's Equipment Company, 520 S.W.2d 407 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); Pittman v. Licerio,496...