Pittman v. Baladez, A-6530
| Decision Date | 26 March 1958 |
| Docket Number | No. A-6530,A-6530 |
| Parties | W. E. PITTMAN, Petitioner, v. Ray BALADEZ, Respondent. |
| Court | Texas Supreme Court |
Hammond & Hammond, Burnet, McKay & Avery, Austin, for petitioner.
W. K. McClain, Georgetown, S. E. Wilcox, Abilene, for respondent.
This suit is a property damage action brought by petitioner in the District Court against the respondent wherein the respondent filed a cross action for personal injuries. The damages were alleged to have been sustained as the result of a collision between a truck operated by petitioner's driver, and a pickup truck operated by the respondent.
Trial before a jury resulted in a judgment that petitioner take nothing on his cause of action, and that respondent recover the sum of $35,000 damages as the result of personal injuries sustained.
Petitioner perfected an appeal as to both actions, and the Court of Civil Appeals has affirmed the judgment of the trial court. 304 S.W.2d 601.
The application for writ of error presents nine points of error. We have determined that one of these points must be sustained. The result of such action will be to reverse the judgments of the trial court and the Court of Civil Appeals and remand both causes of action to the District Court for another trial. We first dispose of the other points presented before considering the point upon which the reversal is predicated. We forego a discussion of those points which, in all probability, will not recur upon another trial.
We deem it necessary to write briefly upon the point which presents the question that the trial court erred in refusing to hold as a matter of law that the failure of respondent to keep a proper lookout was a proximate cause of the collision. We overrule petitioner's contention. The jury found in answer to a special issue that the respondent was negligent in failing to keep a proper lookout. The fact that respondent was negligent in this respect would not bar him from a recovery of damages if his negligence did not proximately contribute to his injuries. The evidence hereinafter set out in connection with our discussion of the point upon which the case is being reversed clearly raises a fact issue as to whether respondent's negligence was a proximate cause of the injuries sustained. This is a question for the trier of the facts. This being true, the trial court did not err in refusing to set aside the answer of the jury to the special issue on proximate cause.
Petitioner next contends that the Court of Civil Appeals erred in failing to reverse and remand the cause for a new trial because of the exclusion by the trial court of the testimony of petitioner's witnesses who would have testified, if permitted, that he passed a black pickup truck about 7:15 p. m., and that later he was at the scene of the accident and saw a similar black pickup truck; that when he met this truck at a point less than one mile from the scene of the accident and as he was approaching a curve in the highway the 'truck came straight ahead and forced me off the pavement.'
We are not called upon to pass upon the question of the admissibility of the testimony. The record shows that when the testimony was first offered objection to its introduction was made and sustained. Later in the trial, the court apparently changed its ruling and informed counsel for petitioner that the testimony as originally tendered would be admitted. Petitioner replied that the witness had left the courtroom and had returned to his home and that under the circumstances 'he would not insist on recalling the witness in person'. Under such circumstances, no error was committed and the petitioner cannot be heard to complain when it is shown that the trial court ruled in favor of the admission of the proffered testimony and the petitioner made no showing that the witness was unavailable, but elected to stand on his original exception to the action of the court in first sustaining the objection. The point is overruled.
There remains one other point which requires consideration. In view of another trial, we point out that the trial court should have sustained Pittman's special exception to the Baladez pleadings wherein it was alleged, in substance, that his inability to do farm and ranch work was a source of continual worry because of his inability to support his family and constituted mental anguish. In the event such pleadings remain the same on another trial, and exception is filed as before, it will be the duty of the trial court to sustain the exception. See Texas Mex. Ry. Co. v. Douglas, 69 Tex. 694, 7 S.W. 77; Jarbet Co. v. Hengst, Tex.Civ.App., 260 S.W.2d 88, no writ history.
We come now to consider the question which requires a reversal. The principal fact issue to be determined in the trial court was the sharply drawn issue as to which vehicle involved crossed the center stripe.
The trial court admitted, over the objection of the petitioner, certain evidence given by Mr. Joe Spivey, a Constable of the county where the accident occurred, as to his observation of the movement and speed of fifteen or twenty trucks of similar type to that owned by petitioner. It is the contention of the petitioner that this testimony was inadmissible and prejudicial and the Court of Civil Appeals erred in failing and refusing to reverse and remand this cause for a new trial.
Before proceeding further with a discussion of this question, which is one of admissibility of evidence, we hold that since the application for writ of error contains points coming within our jurisdiction, we have jurisdiction to pass upon each and every point, including those involving the admissibility of evidence. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185; Moore v. Davis, Tex.Com.App., 27 S.W.2d 153; Commercial Standard Ins. Co. v. Robinson, 137 Tex. 184, 151 S.W.2d 795.
We think the following statement of the evidence and references to the pleadings of the parties is necessary for a full understanding of our holding on this question. The only witnesses to the collision were the respondent, Ray Baladez, the driver of a 1939 pickup truck, and C. D. Wallis, the driver of petitioner's 1953 model International truck. These two will hereafter, for convenience, be respectfully referred to as Baladez and Wallis. The petitioner, the owner of the International truck, will be referred to as Pittman. The witness, Mr. Joe Spivey, Constable, will be referred to as Spivey.
The collision occurred on Highway 29 in Williamson County, Texas, at a point about two miles west of Liberty Hill. Wallis was driving the Pittman truck in an easterly direction, whereas, Baladez was driving in a westerly direction and the collision occurred after dark at about 7:30 in the evening of October 16, 1955. Pittman alleged and Wallis testified that the pavement at the point of impact was twenty feet wide and that there was a well-defined center stripe on the highway. Pittman alleged that Wallis drove his truck in a careful and prudent manner at a lawful rate of speed, and Wallis testified that he kept his truck at all times involved on the south side of the highway and south of the center stripe and that he did not cross the stripe at any time before the collision or after; that as he approached the point of the collision he was traveling at a speed of 'right at' 45 miles per hour. Pittman further alleged that Baladez was proceeding at a high rate of speed in excess of that permitted by law; that Baladez came around a curve in the highway at such speed, and that he failed to keep a proper lookout; failed to keep his vehicle under proper control, and failed to slow down, and that Baladez did 'suddenly and without warning, drive the Ford pickup truck across the center line of the highway and into his left (wrong) or south side of the highway, directly into and against the vehicle owned by Pittman, thereby causing damage to the Pittman truck. Wallis testified to facts which would have supported an affirmative finding on all of these allegations.
On December 2, 1955 Baladez filed his original answer consisting of a general denial and a specific allegation that Each witness, Baladez and Wallis, testified that the other crossed the center stripe. Each testified that he pulled his truck to his right.
Relative to the speed of the Pittman truck, Baladez testified that he had observed the speed of cars in the past, and that based on his observation of the speed of trucks, it was his opinion the Pittman truck was approaching him traveling in an easterly direction at a rate of speed of (miles per hour). John Louis...
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