Parks v. Airline Motor Coaches
| Decision Date | 17 April 1946 |
| Docket Number | No. A-735.,A-735. |
| Citation | 193 S.W.2d 967 |
| Parties | PARKS v. AIRLINE MOTOR COACHES, Inc. |
| Court | Texas Supreme Court |
Action by Kelley Luceil Parks against Airline Motor Coaches, Inc., to recover for the death of plaintiff's husband, who was struck by defendant's bus. From a judgment in favor of the plaintiff, the defendant appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 190 S.W.2d 142, reversing judgment for plaintiff and rendering judgment for defendant, the plaintiff brings error.
Judgment of Court of Civil Appeals affirmed.
Allen, Smith & Neal and J. Edwin Smith, all of Houston, and Campbell & Foreman, of Livingston, for petitioner.
Dyess & Dyess, of Houston, and Strasburger, Price, Holland, Kelton & Miller and Hobert Price, all of Dallas, for respondent.
This action, in which the doctrine of discovered peril is invoked, was brought by Mrs. Kelley Luceil Parks to recover damages for the negligent acts of the driver of respondent's bus which struck and killed her husband, Ira Parks, while he was attempting to cross a public highway on foot at a place other than an intersection. Trial was to a jury, which found that both the driver and Ira Parks were guilty of various acts of primary negligence and contributory negligence, which proximately caused Parks' death. Issues on discovered peril were answered in petitioner's favor. Based thereon, judgment was entered for petitioner for $7485.00. The Court of Civil Appeals reversed and rendered the judgment of the trial court. 190 S.W.2d 142.
The Court of Civil Appeals held that the evidence failed to raise the issue of discovered peril. This Court granted a writ of error in order to review the evidence on this point. The testimony relating to the special issues on the primary negligence of the bus driver and the deceased has no bearing on this question, except in so far as such testimony is relevant to the subject of discovered peril. The essential facts are as follows:
The accident occurred about 9:30 a.m., on a clear day, on the heavily traveled Houston-Livingston highway, only a few miles from the City of Houston. The highway is a two-lane paved road, with wide, smooth, shell shoulders at the place of the accident. At the scene of the accident there are stores and shops along both sides of the highway, which front on an extension of the shoulder. At that place the highway runs north and south.
Ira Parks had been in the vicinity of the accident, off and on, since very early that morning. Around 6:00 a.m. another bus had been forced to stop to avoid striking him. Some thirty minutes before being killed he had been struck and knocked down by a passing car. About ten minutes before the accident he had been seen on the shoulder, thumbing his nose at a person and "wiggling around and doing funny motions." There is evidence that he was intoxicated. However, the jury found that he was not, and there is evidence to support their finding.
Parks had been walking in front of some of the stores on the east side of the highway. Apparently he intended to catch a bus which was waiting on the western side and headed in a southerly direction toward Houston. He was six to ten feet from the paved portion of the highway, walking directly up to it, when he was first noticed by witnesses in connection with this accident. There is no evidence that he was walking in any other than an ordinary manner at that particular time. The bus driver saw him when Parks was about six feet from the highway, at a time when the bus was about 100 feet away. A passenger on the bus saw him approaching the highway about ten feet back from the highway. Parks was looking either straight ahead or down the highway, away from respondent's bus which was approaching from the south going north. Testimony as to the speed of the bus varied from 25 to 65 miles per hour. The driver testified that he was going 30 to 35 miles per hour, but was gaining speed, having just passed a car. It is undisputed that there were cars ahead and behind respondent's bus.
After the bus driver saw Parks walking up toward the highway, he continued to watch him. When Parks got to within two or three feet of the pavement, he acted in a manner which is subject to varied testimony. All of petitioner's witnesses, and some of respondent's witnesses, including the driver, testified that Parks came to a complete stop. Some said he continued to look straight ahead; others that he watched traffic approaching from the north; and one witness for petitioner said he stopped and looked both ways. Witnesses for Mrs. Parks all stated that Parks remained in that position, a place of apparent safety, and that the bus ran off the highway onto the shoulder and struck him. Other witnesses stated that at this point the driver sounded his horn, causing Parks to stop or hesitate or jerk; but that Parks nevertheless walked out, or rushed out, in front of the bus. But viewing the case most favorably to petitioner on the issue of discovered peril, the driver himself testified that he saw Parks walk up toward the pavement and stop about three feet from the highway; that up to that point he had done nothing except watch Parks and continue down the road. Parks was in this position until the bus was about 20 feet from him. Then he stepped or lurched onto the highway. The driver testified that at the instant Parks set foot on the highway, but not before, he applied his brakes, sounded his horn, and swerved the bus to the left to such an extent that it almost collided with a bus stopped across the road from Parks. Eight witnesses for respondent testified that Parks was struck while on the highway. The testimony with reference to where he was struck on the highway varied from two feet on the pavement all the way to the center thereof. It is undisputed that when Parks reached a point two or three feet from the highway, he did either...
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...relies upon language from the cases of Panhandle & S. F. Ry. Co. v. Napier, 135 Tex. 314, 143 S.W.2d 754, and Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967. The opinion in the Napier case (135 Tex. 314, 143 S.W.2d 756) written by Commissioner German and adopted by this Court, ......
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