Peters v. Williams

• Decision Date: 26 March 1925
• Docket Number: (No. 180.)
• Citation: 271 S.W. 430
• Parties: PETERS v. WILLIAMS et ux.
• Court: Texas Court of Appeals

Page 430

271 S.W. 430

PETERS v.WILLIAMS et ux.

(No. 180.)

Court of Civil Appeals of Texas. Waco.

March 26, 1925.

Rehearing Denied April 23, 1925.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Action by R. T. Williams and wife against W. R. Peters.Judgment for plaintiffs, and defendant appeals.Affirmed.

N. J. Llewellyn, of Marlin, for appellant.

Frank Oltorf, of Marlin, for appellees.

GALLAGHER, C. J.

Appellees, R. T. Williams and wife, sued appellant, W. R. Peters, for damages on account of injuries alleged to have been suffered by them in their persons and in their property as the result of a collision between their car and appellant's car, and recovered judgment for $403.The accident occurred on a public road in Falls county.Appellees were traveling westward out of Marlin in a Ford touring car driven by their son, a young man about 24 years of age.They met a wagon loaded with hay coming eastward toward Marlin.This wagon was traveling on the south or right-hand side of the road as to the driver thereof, as required by law.Appellees were traveling on the north or right-hand side of the road as to them, as required by law.Appellant was traveling eastward toward Marlin in his car.He, together with his granddaughter and her cousin, were all sitting on the front seat.He attempted to pass the hay wagon from behind by going between the same and appellees' car.All three of the vehicles seem to have been at about the same point in the road at the time the two cars collided.The case was submitted to a jury on special issues, and the judgment appealed from is based on and conforms to the verdict of the jury in response to such issues.

Appellant complains of a paragraph of the charge of the court reading as follows:

"It is provided by Statute that two vehicles which are passing each other in opposite directions shall have the right of way, and no vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles.Failure to conform to said rule would be negligence on the party so failing, and whether or not such negligence proximately caused an injury would be for the determination of the jury under the evidence in the particular case."

Appellant contends that there was evidence tending to show that all three of the vehicles could have passed at the point of the accident without collision or injury, and that in such cases an attempt to pass one vehicle from behind at the same time another vehicle is attempting to pass the same from the front is not negligence as a matter law, but that whether such attempt is negligence is a question of fact to be determined by the jury.The statute on the question is as follows:

"Two vehicles which are passing each other in opposite directions, shall have the right of way and no other vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles."Complete Texas Statutes 1920,Penal Code, art. 820k(Vernons' Ann. Pen. CodeSupp. 1922, art. 820k).

Unquestionably, the purpose of the statute was to reduce the danger of collision between vehicles in passing each other on a public road or highway.The application of the act is not made to depend in any way upon the width of the road where such passage is attempted in violation of its provision.It is well established that the violation of the express provisions of a statute is, as to any injury proximately resulting therefrom, negligence as a matter of law.H. & T. C. Ry. Co. v. Wilson, 60 Tex. 142;S. A. & A. P. Ry. Co. v. Bowles, 88 Tex. 635, 639, 32 S. W. 880.The charge complained of properly declared that whether such negligence was the proximate cause of the injury was an issue for the determination of the jury.Hines v. Foreman(Tex. Com. App.)243 S. W. 479, 483.The charge complained of was an abstract declaration of the law.The law so declared was not applied to any issue in the case.No issue with reference to whether appellant attempted to pass the wagon from its rear while appellees' car was passing or attempting to pass the same from the front, nor with reference to whether such attempt was the proximate cause of the collision and resulting injury, was submitted.The judgment rendered in this case is predicated on findings of the jury on other issues.Appellant's complaint of said paragraph of the court's charge is overruled.T. & P. Ry. Co. v. Wright, 62 Tex. 515, 517.

The court overruled appellant's motion for a new trial.One of the grounds of such motion was newly discovered evidence.There was practically no dispute as to the fact that all three vehicles were approximately parallel with each other across the road at the time of the accident.Appellant introduced testimony tending to show that he thought when he approached said wagon that he had time to pass the same and return to the right-hand side of the road before appellees' car could reach the wagon; that appellees' car was coming too fast to permit him to do so; that there was ample room in the road for both cars to pass each other and the wagon at the same time; that the cars collided because the driver of appellees' car unnecessarily turned the same into his car, striking the same about the front wheel, rebounding and tumbling over into a ditch at the side of the road.Appellees introduced testimony tending to rebut all of these contentions.

The jury, in response to the issues submitted, made findings in substance as follows: (a) That appellant Peters was not at the time of the collision driving his car in a careful manner, with due regard for the safety of appellees' car, and that such failure was a proximate cause of the collision; (b) that appellant was negligent in attempting to pass the hay wagon and to get back to the right-hand side of the road ahead of it before appellees' car reached the point of passing the wagon, and that such negligence was a proximate cause of the collision; (e) that appellant did not reduce the speed of his car to 15 miles an hour on attempting to pass the wagon, and that such failure was a proximate cause of the collision; (d) that appellees' car was not at the time of the collision running in excess of 15 miles an hour; and (e) that appellees did not turn their car into ...