Nuse v. Kormeier

• Decision Date: 08 November 1961
• Docket Number: No. 10898,10898
• Citation: 351 S.W.2d 382
• Parties: Frank M. NUSE, Appellant, v. Victor A. KORMEIER, Appellee.
• Court: Texas Court of Appeals

Page 382

351 S.W.2d 382

Frank M. NUSE, Appellant, v. Victor A. KORMEIER, Appellee.

No. 10898.

Court of Civil Appeals of Texas, Austin.

Nov. 8, 1961.

John S. Wade, Austin, for appellant.

Byrd & Davis; Jack C. Eisenberg, Austin, for appellee.

RICHARDS, Justice.

Suit was brought in the County Court at Law of Travis County, Texas by Victor A Kormeier, appellee, against Frank M. Nuse, appellant, to recover damages for injuries to appellee's automobile caused in a collision with an automobile which was operated by appellant in a negligent manner on Oltorf Street, in Austin, Travis County. Appellant answered by special exceptions and pleaded as a defense that the proximate cause of the collision and the resulting damage was caused by the negligence of appellee (a) in making a left turn at an intersection in violation of Sec. 33.25B of the Austin City Code, (b) in failing to keep a proper lookout, and (c) in failing to yield the right of way to a vehicle from the opposite direction in such manner as to create a hazard, which acts of omission or commission were in violation of the Uniform Traffic Code and directly and proximately caused the damage, if any, to appellee's automobile. The case was tried to the Court without a jury and judgment was rendered in favor of appellee in the sum of $223.54, from which judgment this appeal was perfected.

Appellant having timely requested the Trial Court to make findings of fact and conclusions of law pursuant ot Rule 296, Texas Rules of Civil Procedure, the Trial Court found from a preponderance of the evidence that appellee's son was driving appellee's car going east on Oltorf and was turning left into the entry-way into Twin Oaks Shopping Center. Appellant crested the hill coming west on Oltorf Street 183 feet east of the entry-way. At the place where the collision occurred the road was straight and ran approximately east and west. There had been no rain and the streets were dry and there were no traffic control devices. The street was divided to accommodate 4 lanes of traffic, 2 lanes in each direction which were separated by a double yellow stripe. The day was clear and visibility was good.

There is a broken white stripe dividing the eastbound lanes and a broken white stripe dividing the westbound lanes. The outside lanes east or westbound are 12 feet in width and the inside lanes east and west are 14 feet in width. As appellant came over the crest of the hill on East Oltorf, he was traveling west in the 'left-handmost' lane of traffic. He skidded 54 feet from the time his brakes locked to the time of impact, which was 9 feet south of the north curb of East oltorf and 1 foot west of the driveway curb on the south entrance to Twin Oaks Shopping Center. Appellee's son was traveling in the inside eastbound traffic lane and as he approached the south entrance to Twin Oaks Shopping Center he commenced to make a turn and was traveling at a rate of approximately 5 miles per hour and was well committed to his turn before appellant came over the crest of the hill. Appellee's son was the operator of appellee's 1956 Chrysler and the main damage was sustained in the right rear fender area. Appellant's skidmarks commenced in the inside westbound lane of traffic, continued across the broken white stripe and ended in the 'outsidemost' westbound lane of traffic.

Based upon the foregoing findings of fact the Trial Court concluded as a matter of law that appellant was traveling at a speed that was imprudent, that such imprudent speed was negligence which was a proximate cause of the collision; that appellant was exceeding the lawful speed limit, that such unlawful speed was negligence which was a proximate cause of the collision; that appellant did not apply his brakes in time to avoid the collision, that such failure was negligence which was a proximate cause of the...