Monte Carlo Distributing Co. v. Rosas

• Court: Texas Court of Appeals
• Writing for the Court: Murray
• Citation: Monte Carlo Distributing Co. v. Rosas, 127 S.W.2d 334 (Tex. App. 1939)
• Decision Date: 29 March 1939
• Docket Number: No. 10500.,10500.
• Petition History: writ dism'd judgm. cor
• Parties: MONTE CARLO DISTRIBUTING CO. v. ROSAS.

127 S.W.2d 334

MONTE CARLO DISTRIBUTING CO. v. ROSAS.

No. 10500.

Court of Civil Appeals of Texas. San Antonio.

March 29, 1939.

Rehearing Denied April 26, 1939.

Appeal from District Court, Thirty-Seventh District, Bexar County; Harry L. Howard, Judge.

Suit by Joe Rosas against the Southern Brewing Company and the Monte Carlo Distributing Company for injuries and property damages sustained by plaintiff as result of a collision between a truck driven by the plaintiff and another truck owned by the Monte Carlo Distributing Company. An instructed verdict was rendered in favor of the Southern Brewing Company from which no appeal was taken. From a judgment for the plaintiff, the Monte Carlo Distributing Company appeals.

Reversed and remanded.

R. H. Mercer, of San Antonio, for appellant.

H. S. Groesbeeck, of San Antonio, for appellee.

MURRAY, Justice.

This suit was instituted by Joe Rosas against Southern Brewing Company and Monte Carlo Distributing Company, corporations, seeking to recover damages sustained by him as a result of a collision between a truck driven by Rosas and another truck driven by one Barrett and owned by Monte Carlo Distributing Company. The collision occurred upon a state highway, known as the Bandera Road, at a point about twenty-four miles in a northwesterly direction from the City of San Antonio. Both trucks were going in the same direction and the one driven by Barrett was attempting to pass the one driven by Rosas when the collision occurred. Rosas had a pipe or steel culvert (such as is used in road construction), about two feet in diameter, loaded in his truck. The culvert was from twenty to twenty-four feet long; one end of it was resting against the cab of the truck, directly behind the driver's seat, and the other end was protruding beyond the rear of the bed of the truck. When Barrett attempted to pass Rosas his truck came in contact with the end of the culvert and the accident followed in which Rosas was injured. Rosas did not have a twelve-inch square red flag displayed at the end of said culvert, as is provided for in Section 4, Article 827a, Vernon's Ann. P.C.

The cause was submitted to a jury upon special issues and based upon the jury's answers thereto judgment was rendered in Rosas' favor in the total sum of $7,500; from which judgment the Monte Carlo Distributing Company has prosecuted this appeal.

An instructed verdict was rendered in favor of the Southern Brewing Company, and no complaint is made of such action; it, therefore, will not be necessary to further mention the Southern Brewing Company.

The jury found, in answer to the special issues submitted to them, as follows:

1. That at the time of the collision the truck operated by R. M. Barrett was not being operated partly to the right of the center of the road, as Barrett attempted to pass Rosas' truck.

2. That Barrett did not fail to give Rosas notice and warning of the approach of his truck.

3. That Barrett failed to keep such a lookout for other vehicles as a person of ordinary prudence would have kept under the same or similar circumstances.

4. That such failure to keep a lookout for other vehicles was a proximate cause of the collision and the injuries.

5. That Rosas' truck was worth $500 before the collision and only $100 after the collision.

6. That Rosas did not fail to keep such a lookout for traffic approaching from the rear, as a person of ordinary prudence would have kept, under the same or similar circumstances.

7. That Rosas, at the time and immediately prior to the collision, did not fail to drive his truck to the right of the center of the road.

8. That Barrett sounded his horn as he approached Rosas' truck.

9. That Rosas did not fail to give way to the right in favor of defendant's truck after the giving of such signal.

10. That Rosas did not fail to keep his truck as closely as possible to the right-hand boundary of the highway and allow reasonably free passage to the left by defendant's truck.

11. That Rosas did not change the course of his truck without first seeing if such movement could be made in safety.

12. That $7,500, if paid now, would reasonably compensate Rosas for his injuries.

Appellant, Monte Carlo Distributing Company, contends that the above findings will not support the judgment rendered against it, in view of the fact that the jury found, in effect, that Rosas' truck was well on the right side of the highway and that Barrett's truck was not being operated partly to the right of the center of the road, and that Barrett gave warning before attempting to pass and, further, that Barrett failed to keep a proper lookout, and that such failure was a proximate cause of the collision.

In other words, appellant contends that these findings are in such hopeless conflict as to destroy each other, and therefore will not support a verdict.

We are of the opinion that what was said by Judge Smedley of the Commission of Appeals, in Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731, 734, settles this contention against appellant.

We copy:

"Respondents contend that there is conflict or inconsistency in the findings of the jury. This contention is based upon certain answers of the jury to special issues not hereinabove discussed; that the bus did not fail to travel on the right side of the road; that plaintiff did not drive his car so that the left front wheel was on the south side of the center line of the highway; that plaintiff did not turn his car sharply to the left diagonally across the highway into the side of the bus; and that plaintiff did not fail to drive his car parallel to the center line direction of the highway. It is argued that in view of these findings the collision could not have occurred. It is also argued that plaintiff could not have been guilty of contributory negligence in driving at a rate of speed in excess of 15 miles per hour, or in failing to keep a lookout, when he was on the side of the highway where he had a lawful right to be.

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