Peden Iron & Steel Co. v. Claflin

• Decision Date: 05 December 1940
• Docket Number: No. 11066.,11066.
• Citation: 146 S.W.2d 1062
• Parties: PEDEN IRON & STEEL CO. et al. v. CLAFLIN et al.
• Court: Texas Court of Appeals

146 S.W.2d 1062

PEDEN IRON & STEEL CO. et al. v. CLAFLIN et al.

No. 11066.

Court of Civil Appeals of Texas. Galveston.

December 5, 1940.

Rehearing Denied January 30, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by Gracie Lee Baird Howell Claflin and her husband, against the Pedan Iron & Steel Company, and another, for injuries sustained when named plaintiff was struck by defendants' truck. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for appellants.

Allen, Helm & Jacobs, S. M. Helm, and Arthur P. Terrell, all of Houston, for appellees.

GRAVES, Justice.

This appeal is from a $20,000 judgment in the appellees' favor against appellants, entered both upon a jury's verdict in response to special issues submitted and upon independent findings of the court itself from the evidence, by the 80th District Court of Harris County, as for damages for personal injuries resulting to the appellee, Mrs. Claflin, from the negligence of the appellants in a collision between one of the appellants' trucks and Mrs. Claflin on the Air Line Road in Harris County, near its intersection with the Westfield Road, on November 10, 1938.

The truck, to which a trailer was attached, while belonging to the Steel Company, was being driven at the time by appellant, J. J. Wright, and the injured appellee was on foot on the ground.

This summary of the jury's findings, in response to 46 special issues, is taken from the appellants' brief:

"(1) That just prior to the accident, Wright was operating his truck at a speed which was dangerous under the circumstances and that such act was negligence and a proximate cause of the injuries sustained by plaintiff.

"(2) That Wright was not operating his truck at a rate of speed in excess of 45 miles per hour just prior to the collision.

"(3) That the act of Wright in operating his truck at a rate of speed in excess of 25 miles per hour just prior to the collision was a proximate cause of the injuries sustained by appellee.

"(4) That just prior to the accident Wright was negligent in failing to keep his truck under proper control and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.

"(5) That Wright was negligent in failing to keep a lookout for persons on the highway ahead of him just prior to the accident and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.

"(6) That Wright failed to sound any warning of the approach of the truck as he approached the place of collision and that such failure was negligence and a proximate cause of the injuries sustained by appellee.

"(7) That the failure of Wright to stop the truck just before he did stop it was negligence, and that such negligence was a proximate cause of the injuries sustained by Mrs. Howell.

"(8) That Wright failed to drive the truck and trailer on the concrete portion of the highway at the time of the collision and that such failure was negligence and a proximate cause of the injuries sustained by the appellee.

"(9) That prior to the accident Wright discovered Gracie Howell in a position of peril, but that such discovery was not made within such time and distance as that by the exercise of ordinary care in the use of all the means at his command, he could have avoided the accident.

"(10) That the occurrence made the basis of the suit was not the result of an unavoidable accident.

"(11) That Mrs. Howell did not fail to keep a lookout for vehicles approaching from the south on the highway at the time of the accident.

"(12) That Mrs. Howell did not run suddenly across the highway after hitting Dan Schell in the face with an object.

"(13) That Mrs. Howell did not fail to look to the right before starting to cross the highway.

"(14) That Mrs. Howell did not fail to look to her right before crossing the center line of the highway.

"(15) That Mrs. Howell failed to stop before crossing the center line of the highway but that such failure was not negligence.

"(16) That Mrs. Howell did not run into the side of the truck on the occasion made the basis of the suit.

"(17) That the plaintiff had sustained damages in the sum of $18,500 on account of past and future physical pain, mental suffering and loss of earning capacity.

"(18) That the present cash value of future medical expenses was the sum of $1,500."

The record and the briefs are long, but the contentions of appellants here may be condensed into these four general ones, to-wit:

(1) The arguments of the appellee's counsel to the jury in nine separate indictments were highly improper and prejudicial against the appellants, to the extent that the court reversibly erred in not granting them a new trial upon each one of them;

(2) The trial court erred in refusing to submit to the jury appellants' specially requested issues Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, together with two other subsidiary ones thereto attached, to the same effect;

(3) The stated findings of the court and the jury—with special reference to the manner in which it was therein determined the accident herein involved occurred— having been completely refuted by the testimony of many disinterested witnesses, by pictures taken at the scene soon after the accident happened, and by measurements made there then by disinterested officers of the law—were so against the great weight of the evidence as to be clearly wrong;

(4) The jury's finding under issue No. 45, fixing at $18,500 the damages sustained by the injured appellee, for physical pain, mental anguish, and loss of earning capacity, was so excessive as to indicate passion, prejudice, sympathy, or some other improper motive on the jury's part, as, in justice, to have required the setting of such finding aside in its entirety, or the reducing of it by a substantial amount.

Such of these presentments as are directed against the judgment in its entirety will be disposed of first. This court is unable to hold either the jury's verdict, or the trial court's implied additional findings, so against the overwhelming weight and preponderance of the evidence in any respect as to require the exercise of its exclusive authority to reverse it upon that ground; this, for the reason that, in its opinion, there was upon the whole only such a conflict in the testimony having to do with the manner of happening of the accident—inclusive of the several acts of the two participating parties therein—as well as the extent of the appellee's resulting injuries and the amount of her entailed damages, as it was the sole province of the court and jury to resolve.

It is not required that a reiteration, nor even a comprehensive resume, of the extensive body of the evidence be here made, entailing undue length upon this opinion; but it is enough to record this court's finding from a review of the whole body of the evidence, that the court and jury were not unwarranted in finding the accident to have happened substantially in the manner claimed by the appellee, and the precipitated damages therefrom upon Mrs. Claflin to have been the $20,000 awarded her; there were two distinctly clashing theories severally relied upon by the opposing parties upon each of these issues, and it cannot, we think, properly be said, either that the evidence was insufficient to raise issues of fact over them, or to support as facts the findings made thereon. This conclusion seems to this court to be the more justified from the circumstance that the cause was largely what is termed a "fact case". As concerns the actual happening of the accident, this very brief recitation from the appellees' brief is thought to be fully supported in the statement of facts:

"The appellee and her companion, Grace Rayburn, testified that the appellee was struck in the back by appellants' truck when appellee was on the east shoulder of the Airline Road. The defendant Wright, who was driving the truck at the time of the collision, testified that while he was pulling to the east shoulder of the Airline Highway the appellee was struck with the side of his truck. The only other witness who was in the vicinity of the collision at the time it occurred was R. H. Smith, called by the appellants, who was standing down the highway some 150 yards, with the lights of the truck in his eyes, but still testified that the side of the truck struck the appellee as she crossed the highway. The only other witnesses were those that arrived at the scene of the collision after it had occurred and testified as to marks on the highway and shoulder, and identified the pictures that were taken, and attempted to impeach appellee by prior inconsistent statement attributed to appellee, who was suffering from a broken back, was irrational of mind if not unconscious, whose lower extremities were found to be paralyzed shortly thereafter, together with other serious injuries, and likewise attempted to impeach the testimony of Grace Rayburn on alleged inconsistent statements made while she was holding the appellee's head and hysterical, or nearly so, from fright, as to the condition of her injured companion."

Likewise, this capitulation of what was so further reasonably shown as to her resulting injuries, and her diminished earning capacity during her future life expectancy, is considered to have equal support:

"Appellee was unconscious off and on from the day of the accident until the following Saturday (the accident having occurred on Thursday evening); that when she regained consciousness she was paralyzed from her waist down; that there were other bruises on her body and injuries to her back; that she could not move her legs or toes and that there was a lot of pain in her head, and she had had very bad headaches from the date of the accident on November 10, 1938, down to the date of the trial; that at the time of the trial she weighed...