Molter v. Madden, 2772.

• Decision Date: 15 January 1948
• Docket Number: No. 2772.,2772.
• Citation: 207 S.W.2d 984
• Parties: MOLTER v. MADDEN.
• Court: Texas Court of Appeals

207 S.W.2d 984

MOLTER v. MADDEN.

No. 2772.

Court of Civil Appeals of Texas. Tenth District. Waco.

January 15, 1948.

Appeal from County Court at Law No. 2, Bexar County; C. J. Matthews, Judge.

Action by Arthur Madden against Charles H. Molter to recover damages to plaintiff's automobile sustained in a collision with defendant's truck. From an adverse judgment, defendant appeals.

Affirmed.

S. Engelking, of Comfort, for appellant.

Karl Strieber, of San Antonio, for appellee.

LESTER, Chief Justice.

This is an appeal from a judgment rendered in the County Court at Law No. 2 of Bexar County, Texas. The parties will be referred to as they appeared in the trial court.

The plaintiff first sued the defendant in one of the justice courts of said county for damages sustained to his automobile. The plaintiff alleged that such damage was proximately caused by the negligence of the defendant in driving his truck into and against the rear of plaintiff's automobile. Plaintiff secured a judgment in his favor in the justice court and the defendant appealed to the county court, where the plaintiff again recovered a judgment in his favor in the sum of $150.

The plaintiff alleged that he was driving in a southerly direction on North Flores Street in the city of San Antonio, Texas; that he had stopped his car between Travis and Houston Streets on account of the traffic light situated at said intersection being red at that time, and while so stopped, the defendant negligently ran his truck into and against the rear of his car, thereby damaging the same. The defendant's contention was that a third car which was behind his truck ran against the rear of his truck, thereby knocking his truck against the plaintiff's car.

Upon trial of the case in the County Court the cause was submitted to the jury upon special issues. The jury found that the defendant was negligent in the following respects: that he failed to keep a proper lookout; that he failed to have his car under proper control, and that he failed to apply his brakes. The jury also found that each of such acts was negligence on the part of the defendant and that such negligence was a proximate cause of the damages sustained by the plaintiff. The jury further found that a third person behind the defendant did not propel his car against the defendant's truck.

The defendant contends that the evidence is insufficient to support the verdict of the jury. Except for the plaintiff and defendant, there were only two witnesses who testified in the case. A witness who operated a bar and cafe on North Flores Street testified that he saw the third car bump into appellant's truck, which caused the truck to collide with the rear of plaintiff's automobile. He further testified that the defendant's truck had not come to a stop but was still in motion at the time the other car struck the same. A traffic officer was, at the time, on duty 15 or 20 feet from the place of the collision but he did not see the truck collide with plaintiff's car, but upon hearing the noise of the collision he immediately went to the scene. He testified that no car bumped into the defendant's truck; that the car which defendant's witness testified about had not reached the scene of the accident at the time the defendant's truck collided with the plaintiff's car, but it arrived later, and he directed said car around the truck and automobile in question. The evidence shows that it was a bright, clear day and there were no obstructions to prevent the defendant from seeing the plaintiff's car which had come to a stop when hit by the truck. The defendant admitted that he did not apply his brakes on the occasion in question.

This happens to be a case in which there was conflicting evidence. Under such a situation and under our system of jurisprudence, the jurors...