Naylor v. Lack, 14393

• Decision Date: 12 October 1951
• Docket Number: No. 14393,14393
• Citation: 243 S.W.2d 240
• Parties: NAYLOR v. LACK.
• Court: Texas Court of Appeals

Page 240

243 S.W.2d 240

NAYLOR v. LACK.

No. 14393.

Court of Civil Appeals of Texas, Dallas.

Oct. 12, 1951.

Clifford S. Dillard and Harold B. Wright, both of Dallas, for appellant.

Malone, Lipscomb & Seay and Paul A. Mattison, all of Dallas, for appellee.

BOND, Chief Justice.

This suit was instituted by plaintiff Mallie Naylor against defendant Katherine A. Lack for damages sustained as the result of the death of her husband Edwin E. Naylor, killed in a collision with an automobile alleged to have been in many respects negligently operated by the defendant at the time of the collision. The collision occurred at the intersection of Jefferson, Rosemont, and Tenth Streets in the City of Dallas.

At the intersection of these three streets, Jefferson extends approximately east and west,-a two-lane traffic highway, each lane about 27 feet wide and separated by streetcar tracks and right-of-way, the right-of-way being approximately 27 or 28 feet wide; Rosemont extends approximately north and south, is about 30 feet wide, and intersects Jefferson at approximately right angles; Tenth Street enters the intersection of Jefferson and Rosemont at the Jefferson south traffic lane and the extended west line of Rosemont, from approximately a southwesterly direction. The fatal collision occurred while the deceased was traveling in a westerly direction in the north traffic lane of Jefferson, the defendant in a northerly direction within the intersection of the three streets and near the east curb line of Rosemont. The two automobiles, immediately before the impact, were approaching each other approximately at right angles, the deceased from the east, going west, and the defendant from the south, going north. There is no disclosure in the record that either of the parties slackened speed, applied their brakes, blew their horn, or gave any visible or audible sign or noise as a warning of their approach. A Mr. McKinney, the only witness of the collision, other than the defendant, gave evidence that he viewed the collision from a point back on the west side of Rosemont, about 15 feet from the north line of Jefferson; that from that point he first saw a car approaching from the east on Jefferson (subsequently proven to be the deceased's car) about 15 or 20 feet from the east curb line of Rosemont; and that when he saw the other car (defendant's automobile) it was in the south traffic line of Jefferson, traveling in a northerly direction within the intersection of Rosemont, on the south side of the street car tracks. The witness was then interrogated:

'Q. Tell the jury in your own language what you saw from then until the accident took place. A. Well, there wasn't much to see. I stopped there when I saw the two cars and it just looked to me like they were going to run together, and, well, I hollered 'Hold it,' just as loud as I could, but by that time it said 'Bang!'

'Q. Did you hear either car sound a horn there on that occasion? A. No, sir, I did not.

'Q. Did you see anything that conveyed to your mind the impression that either of the two drivers attempted to apply the brakes? A. No, sir, I did not.

Q. You were looking at both cars, were you not? A. Yes, sir.

'Q. Did you see anything, Mr. McKinney, that indicated to you that either of the drivers of the two cars saw the other or was aware that it was approaching? A. Well, I don't think they did.' (After the witness had thus testified, the plaintiff's attorney raised objection that the answer was a conclusion, an opinion of the witness. The trial court sustained the objection and allowed the witness to testify only as to what he saw and how it appeared to him.)

The interrogatory continued: 'Q. Did you, or not, see anything that conveyed to your mind the impression that the driver of either car saw the other car? A. I don't think they did.' (The plaintiff again objected that the answer was a conclusion of the witness. The court overruled the objection, to which action the appellant assigns a point of error which will be hereinafter discussed.) The defendant herself gave evidence of the fatal collision, testifying that she turned her automobile into the intersection of the south traffic lane of Jefferson and the west line of Rosemont, from the southeast traffic lane of Tenth Street, turning gradually to the north, stopping her car just before crossing Jefferson south-lane and the streetcar right-of-way. She further testified that while stopping at the streetcar right-of-way, she again looked to the east and to the west for approaching automobiles and streetcars, and at that point she observed only one automobile (deceased's car) entering the Jefferson north lane from Montclair (the first street east of the intersection here involved); that at that juncture she adjusted her automobile gears to 'low' and proceeded north; and, as she was crossing the streetcar right-of-way near the right, or east, side of Rosemont, adjusting the gears of her automobile to high speed, the deceased's car, coming from the east, struck her front fender and 'sideswiped' her automobile, thus throwing his car against the right side of her car. Defendant further testified that at the time of the impact she did not see the deceased's car, that it hit her automobile a glancing blow and went on through,-gave her a glancing blow which caused his car to veer to the right, make a turn-about, and then strike the west curb of Rosemont Street as it rounded the north line of Jefferson. The contact blew out his tire,-the operator was killed.

Trial was had to a jury, a verdict rendered and returned into court on October 10, 1950,...