Owens v. Acme Oil Co., 206

• Decision Date: 10 November 1966
• Docket Number: No. 206,206
• Citation: 408 S.W.2d 947
• Parties: Howard F. OWENS et ux., Appellants, v. ACME OIL COMPANY et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 947

408 S.W.2d 947

Howard F. OWENS et ux., Appellants, v. ACME OIL COMPANY et al., Appellees.

No. 206.

Court of Civil Appeals of Texas Tyler.

Nov. 10, 1966.

Rehearing Denied Dec. 8, 1966.

George L. Schmidt, Schmidt & Garrett, Houston, for appellants.

Timothy E. Kelley, George C. Chapman, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.

DUNAGAN, Chief Justice.

Appellants, Howard F. Owens and his wife, Mrs. Marie Owens, plaintiffs below, brought this suit against appellees, Roy F. Calvert, individually, and the Acme Oil Company, a partnership comprised of Roy F. Calvert and F. A. Cotey, for injuries sustained by Mrs. Owens when appellee, Roy F. Calvert, backed his car into the front of an automobile driven by appellant, Mrs. Owens. Based upon jury findings that Mrs. Owens was guilty of certain acts of contributory negligence, judgment was entered for the appellees. Appellants appealed therefrom asserting what are commonly referred to as 'no evidence' and 'insufficient evidence' points of error.

The accident in question between appellant, Mrs. Marie Owens, and appellee, Roy F. Calvert, occurred on August 23, 1963, at approximately 1:00 p.m. The parties were on what Mrs. Owens described as a private road maintained by the Lake Ioni Club. The road was a narrow, two-rut road in a wooded area near Palestine.

Mr. Calvert had a crew of men in the area servicing oil were pumping units and he had arrived in the area around 9:00 a.m. on the morning of the accident. He had two of his men working on a well close to where the accident happened, and he had stopped in the road waiting for them to finish so he could show them where the next well was.

Mr. Calvert was seated in his car facing the well where the men were working, which was a distance of approximately 200 yards. As the men started to leave their immediate location, Calvert feared that if they took a certain route, they would get stuck in the sand, which the evidence shows was 10 to 12 inches deep, so in an effort to get them to follow him, he motioned for them to come his way. After motioning, when he thought they understood, he closed the door to his car.

Mrs. Owens had pulled up to his automobile approximately 10 feet directly behind Mr. Calvert where he had been parked something like 45 minutes, and when she observed his motioning to his men, she erroneously thought he was waving her backwards. Actually, Mr. Calvert had not seen Mrs. Owens and never saw her nor knew she was behind him until the impact occurred.

Mrs. Owens gave the following testimony in response to questions propounded to her on direct examination:

'A Well, when I entered the club property, that road forms a crow's foot, and gives the name of all the people there, and the right hand road that leads down to our cabin and almost immediately after I hit this road, I saw Mr. Calvert's car down the road ahead of me, I'd say about 150 yards.

'Q And, what did you do when you saw his car in front of you?

'A Well, I just kept going on down the road and Mr. Calvert was stopped there, and whenever I saw Mr. Calvert was stopped there, I stopped behind him.

'Q How far behind him did you stop?

'A I couldn't tell you exactly how far behind him it was. But, I would say at least ten feet, because I could see Mr. Calvert's tail lights and everything.

'Q All right. Now, when you came to a stop, what happened?

'A Well, when I came to a stop, Mr. Calvert was sitting in his car . He rolled his window down and stuck his hand out and he gave a signal this way (witness indicating with hand), and he rolled his window back up and put his car in reverse, his back-up lights came on and I assumed he wanted me to back up, because I didn't see anyone near us, so I turned around in my car to look out the back, in order that I could see my way clear and see if there was anybody behind me and how far I was going to back up in order to give Mr. Calvert room to get out. I figured he had gotten on the wrong road and he wanted to get back on the right road.

'Q And, what happened?

'A As I turned around and was looking out the back of the car, the next thing I knew Mr. Calvert had hit me. I felt an impact.'

On cross-examination, Mrs. Owens testified:

'Q Did you ever see Mr. Calvert turn around and look at you?

'A No, sir, I did not.

'Q You did see his back lights go on?

'A Yes, sir.

'Q Did you see him start to move backward?

'A No, sir, I didn't see him start to move backwards, because when I saw his backup lights come on and after he had given a signal, I turned around in my car, to see which way I was going to go to back out of his way.

'Q Incidentally, did you honk your horn at all?

'A No, sir, I didn't blow my horn.

'Q Had you started moving backwards at all?

'A No, sir, I had not. I turned around to observe the view behind me, to make sure nobody was behind me, that the road would be clear for me to back up.

'Q Had you shifted into reverse?

'A No, sir, I don't remember whether I did or not. I just could not say and be truthful about it.'

Mrs. Owens did not offer any positive or direct testimony as to why she did not sound her horn immediately upon seeing that Mr. Calvert was preparing to move his car backward.

It is our opinion that under the record as a whole the law imposed a duty upon Mrs. Owens to sound the horn under the circumstances shown and the question as to whether her failure so to do was 'negligence,' as that term was defined in the court's charge, was for determination by the jury. Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109; Page v. Scaramozi, 288 S.W.2d 909 (Tex.Civ.App.), San Antonio, 1956, writ ref., n.r.e.; Tarry Warehouse & Storage Co. v. Price, 76 S.W.2d 162 (Tex.Civ.App.), Fort Worth, 1934, writ dism.

Mr. Calvert's testimony substantially confirmed the testimony of Mrs. Owens in regard to the events and circumstances leading up to the collision.

Mr. Calvert and Mrs. Owens were the only occupants of their respective automobiles. Mrs. Owens did have a little dog in the front seat with her. The record does not reflect that there were other witnesses to this accident.

The jury found that Mr. Calvert failed to keep a proper lookout and that such failure was a proximate cause of the collision in question and that Mr. Calvert did not back his automobile on the occasion in question at a speed in excess of that in which a person of ordinary prudence in the exercise of ordinary care would have backed the same, under the same or similar circumstances. However, the jury did find that Mrs. Owens failed to keep a proper lookout, which was a proximate cause of the collision, and that her failure to blow her horn was negligence and that such negligence was a proximate cause of the collision. The jury also found that 'It was not the result of an unavoidable accident.'

The appellants contend: (1) there was no evidence; (2) insufficient evidence to support the submission of either of the contributory negligence issues or the rendition of the judgment upon such findings by the jury; (3) and that the jury's findings of each of the contributory negligence issues were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. They further contend the trial court erred in refusing to disregard the jury's answers to said contributory negligence issues because such findings are supported by no evidence, or insufficient evidence, and are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

It is also appellants' contention that under the circumstances: (1) Mrs. Owens was under no duty to blow her horn; (2) that she could not legally be charged with anticipating or foreseeing, under the circumstances surrounding this accident, that Mr. Calvert would back his automobile without looking; (3) or waiting until the way was clear before backing it; (4) therefore, the findings of the jury and the judgment of the court imposed upon her the impossible duty to keep a lookout ahead and to the rear at the same time while backing to clear Mr. Calvert's automobile, and the duty to anticipate and foresee that appellee, Roy F. Calvert, would not look to the rear before backing, or would not wait until her car was clear.

The court's charge contains the following instructions and definitions:

'By the term 'negligence', as used in this charge, is meant a failure to do that which a person of ordinary prudence, in the exercise of ordinary care, would do under the same or similar circumstances, or the doing of that which a person of ordinary prudence, in the exercise of ordinary care, would not do under the same or similar circumstances.

'By the term 'ordinary care' is meant that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances.

'By the term 'proximate cause', as used in this charge, is meant a cause which in a natural and continuous sequence produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary prudence, in the exercise of ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.'

The Supreme Court of this state in Liberty Film Lines, Inc. v. Porter, 136 Tex. 49, 146 S.W.2d 982, said:

'Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts--the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action . Chief Justice Hickman, while on the Eastland Court, tersely stated the principle to which I refer, in Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744, 745: 'Undoubtedly, facts might exist in a given case which would be so conclusive in their nature as to establish, as a...