Mrs. Baird's Bakeries, Inc. v. Roberts, No. 3684

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: GRISSOM
• Citation: 360 S.W.2d 850
• Parties: MRS. BAIRD'S BAKERIES, INC., Appellant, v. Bobby Lewis ROBERTS et al., Appellees.
• Decision Date: 21 September 1962
• Docket Number: No. 3684

Page 850

360 S.W.2d 850 MRS. BAIRD'S BAKERIES, INC., Appellant,
v.
Bobby Lewis ROBERTS et al., Appellees. No. 3684. Court of Civil Appeals of Texas, Eastland. Sept. 21, 1962.
Rehearing Denied Oct. 12, 1962.

McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellant.

Scarborough, Black & Tarpley, Abilene, L. H. Welch, Breckenridge, for appellee.

GRISSOM, Chief Justice.

On September 5, 1959, at about 1:00 o'clock in the afternoon, Bobby Lewis Roberts, age thirteen, was riding his father's motorcycle east on Highway 180 and Walker Street in the City of Breckenridge. Mr. Pennington, an employee of Mrs. Baird's Bakeries, Inc., had parked said company's bakery truck and trailer, about 45 feet in length, in front of the company's warehouse on the south side of Walker Street. This was Pennington's last bread delivery for the day and he was in a hurry to return to Abilene. The truck was facing east. About 60 feet to the west there was a street intersection and a block east of that intersection there was another. Pennington saw Bobby riding the motorcycle east when Bobby was six or seven hundred feet west of the parked truck. Thereupon, Pennington drove the truck to his left, in the middle of the block, north and slightly west across said street and highway and across two solid yellow lines 4 feet apart at the center

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of the highway. While Pennington was in this position, with the truck turning toward the west on the north side of the highway and the trailer occupying all but about ten feet of the south side of the highway, Bobby drove the motorcycle out of a lower portion of said highway to the west and ran into the trailer. The motorcycle was demolished and Bobby suffered severe injuries. Bobby and his father sued Mrs. Baird's Bakeries, Inc., for damages.

Pennington testified, in effect, that he saw Bobby when he was six or seven hundred feet to the west as Pennington started turning across the highway; that he did not see Bobby again until Bobby was two hundred feet away and approaching the truck at 60 miles per hour and that there was nothing he could then do to avoid the collision. The paved portion of the highway is one hundred feet wide. At the place of the collision and for about two miles through the city the highway was marked with two solid yellow stripes painted on the highway four feet apart at its center with the lines unbroken except at street intersections. There was no material dispute about what Pennington did. Plaintiffs' testimony was to the effect that Bobby was approaching the truck at about thirty miles per hour while defendant's testimony is that he was driving about sixty miles per hour.

A jury found that (1) Pennington attempted to turn the truck to his left across the yellow stripes on the highway; that (2) Pennington's failure to turn at an opening or dividing section, instead of across the yellow stripes, was negligence (3) and a proximate cause of the collision; that (4) Pennington failed to keep a proper lookout, (5) which was a proximate cause of the collision; that (6) Pennington attempted to turn left without giving a signal of his intention to do so and that (7) this was negligence and (8) a proximate cause of the collision; that (9) prior to the collision Bobby was in a perilous position; that (10) before Pennington commenced turning left he saw Bobby approaching on his motorcycle; that (11) Pennington knew, or should have known, of Bobby's perilous position before he commenced turning left; that, (12) having due regard for his own safety and the safety of the truck, Pennington could have avoided the collision by the exercise of ordinary care; that (13) Pennington failed to exercise ordinary care to use the means at hand to avoid the collision and that (14) such failure was a proximate cause of Bobby's injury; that (15) the collision was not the result of an unavoidable accident; that (16) $5,000.00 would compensate Bobby's father for the damages suffered by him; that (17) $40,000.00 would compensate Bobby for his injuries; that (18) Bobby was not driving the motorcycle at an excessive rate of speed; that (21) Bobby did not fail to keep a proper lookout; that (23) immediately prior to the collision Bobby turned to his left but that (24) this was not negligence; that (26) Bobby did not drive across the center line of the highway; that (29) Bobby was not operating the motorcycle with the consent of his parents; that (35) Bobby's father and mother failed to equip the...