Pittman v. Baladez

• Decision Date: 10 July 1957
• Docket Number: No. 10509,10509
• Citation: 304 S.W.2d 601
• Parties: W. E. PITTMAN, Appellant, v. Ray BALADEZ, Appellee.
• Court: Texas Court of Appeals

Page 601

304 S.W.2d 601

W. E. PITTMAN, Appellant, v. Ray BALADEZ, Appellee.

No. 10509.

Court of Civil Appeals of Texas, Austin.

July 10, 1957.

Rehearing Denied Aug. 7, 1957.

Hammond & Hammond, Burnet, McKey & Avery, Austin, for appellant.

W. K. McClain, Georgetown, S. E. Wilcox, Jr., Abilene, for appellee.

GRAY, Justice.

Appellant, W. E. Pittman, sued appellee, Ray Baladez, for property damage sustained when a truck owned by him and operated by C. D. Wallis was in collision with a pickup truck operated by appellee. Appellee answered and filed a cross action against appellant to recover for personal injuries. Each party alleged that the driver of the other vehicle was negligent in various respects and that each alleged act of negligence was a proximate cause of the collision.

The collision occurred Sunday, October 16, 1955, at about 7:30 P.M., on highway 29 about two and one half miles west or northwest of Liberty Hill in Williamson County. The highway was a paved highway with the pavement approximately twenty feet wide and having a center line or stripe. Said highway runs generally from an easterly to a westerly direction and the portion material here may be described as follows: going west it makes a slight turn to the right, goes down an incline, crosses a bridge, goes up an incline and makes a slight curve to the left. It appears that after leaving this last curve the highway is straight for a distance. It was at or near the point where the highway leaves this last curve (going west) that the collision occurred.

The drivers were alone in the respective vehicles, were driving with their lights on, and, except the drivers, there were no eyewitnesses to the collision.

Appellant's truck was a 1953 International and it pulled a shop-made tandem trailer. It was operated under authority granted by the Railroad Commission of Texas and at the time it was proceeding in an easterly direction from Midland to Houston with the trailer pulled up on the tractor. The weight of the entire unit was 18,200 pounds. Appellee was driving west in a 1939 Ford half-ton pickup truck, described as 'an old black Ford pickup.'

The damage to the truck was to its left front fender, left front wheel with further damage to its alignment, etc. The damage to the pickup was to its left front fender, left front wheel and generally to its left side.

There is no evidence that the driver of the truck sustained any personal injuries. Appellee was driving with his left arm resting in the window of the pickup and he sustained a fractured skull, lacerations on his head and face and a mangled and crushed left arm. He was rendered unconscious and was first taken to a hospital in Bertram, Texas, there given emergency treatment and was then sent, by ambulance, to a hospital in Austin where his left arm and entire left shoulder joint was removed. He remained in the hosital in Austin until he had sufficiently recovered to permit his return to his home in Bertram where he was under a doctor's care for a time.

A jury trial resulted in a judgment that appellant take nothing by his suit and that appellee recover judgment against appellant for $35,000.

Appellant filed an amended motion for a new trial and, among other things, alleged jury misconduct in that during its deliberations the jury discussed insurance, attorney's fees and further alleged that after the jury was discharged and out of the courtroom appellee's attorney told the jury (in substance) hat they would probably be contacted relative to their deliberations and that they were not obligated to make any statement but that they had the right to do so if they so desired. A hearing was had on the motion, the same was overruled and findings of fact and conclusions of law were filed. There is also before us a statement of facts showing the testimony heard.

Appellant here presents eighteen points of alleged error. These points will not be stated but we will consider and dispose of each.

Appellee and appellant's driver both testified at the trial, each accused the other of negligently operating his vehicle and there was also debris (dirt, glass, small pieces of human bone and other substances) left on the highway. There was also evidence offered tending to show on which side of the center line of the highway was the actual point of impact of the vehicles.

Appellant called H. H. Dodson as a witness. He testified that he lived four miles west of Liberty Hill, that he went to church there each Sunday night and that in so doing he traveled the highway in question. He further testified that he remembered something about a wreck at or near the place in question. He was not certain of the date other than that it was Sunday night in October, 1955, and upon being shown a picture of appellant's truck he would not identify it as the truck he saw at the scene of the wreck. In the absence of the jury he testified that on Sunday night in October, 1955 he was driving east toward Liberty Hill at about 7:15 P.M., and that about a mile or mile and one half east on the highway from where the collision in question occurred and as he was coming into a slight turn he met a pickup coming west, that it had already entered the turn nd that it forced him off of the pavement. He could not identify the driver nor the pickup other than that it was an old pickup and was a dark color. He further said that as he came back by the point where the collision in question occurred he saw some evidence showing there had been a wreck, and that he saw two trucks but did not know what kind they were. At this point the picture supra was shown to him. Upon appellee's objection the evidence was excluded. Appellant excepted and took his bill of excetion and Dodson was excused. Subsequent to this time and after appellant had rested his case appellee testified as a witness in his own behalf and upon cross-examination by appellant he was asked if he met H. H. Dodson on the highway just prior to the collision and answered that he did. Appellant then tendered all of the evidence of the witness Dodson inclusive of that shown in his bill of exception. Appellee objected on the ground that he did not have adequate opportunity for cross-examination. The objection was sustained but the trial court then advised appellant that the testimony of Dodson as originally tendered would be admitted. Appellant then advised the court that the witness had left the court, returned to his home and was not available and stated that he would not insist on recalling the witness in person but would stand on the urge his bill of exceptions as originally taken. It is not shown whether Dodson was merely excused from the witness stand, whether he was discharged by the court or whether he voluntarily left.

Rule 270, Texas Rules of Civil Procedure, provides that at any time the court may permit additional evidence to be offered if necessary to the due administration of justice provided that in a jury case evidence on a controversial matter shall not be received after the verdict.

Long prior to the adoption of Rule 270 supra the statutes, which are its source, authorized trial courts to permit witnesses to be recalled after they had testified and had been discharged if it was necessary to the due administration of justice. Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S.W. 151. Moreover, if appellant permitted the witness Dodson to be excused and to go home he did so with the implied knowledge of the provisions of Rule 270 supra, that is, with the implied knowledge of 'the possibility, if not probability, that the case would be reopened prior to' the verdict of the jury. Texas Co. v. Ramsower, Tex.Com.App., 7 S.W.2d 872, 878. Rehearing denied, Tex.Com.App., 10 S.W.2d 537.

Appellant was afforded an opportunity to introduce by the witness Dodson the evidence he complains was erroneously excluded and he declined to accept. There is no showing that Dodson could not be recalled, appellant advised the court 'that he would not insist on recalling the witness in person.' In this state of the record it cannot be said that appellant was denied the right to introduce evidence and error is not presented.

Appellee called as a witness Joe Spivey the constable at Liberty Hill. He testified that he had been constable nine years, had been driving an automobile for more than forty years, had worked with highway patrolmen and other officers, had had experience in observing the speed of automobiles, had checked their speed by stop watches, and said that from observation he could tell approximately how fast an automobile was traveling. Over appellant's objection this witness was permitted to testify that he had observed trucks, similar to appellant's, at or near the scene of the collision; that he had checked fifteen or twenty trucks of that type at the scene of the collision; that most of them were going from 50 to 60 miles per hour and that at that speed nine out of ten of the trucks would not stay on its own side of the highway after it made the curve and that their front 'will come over every time just after they pass that curve.'

The highway and its condition was the same at the time of the observations as at the time of the collision. However there is no evidence that vehicles were meeting the trucks and the observations were made in daylight rather than after dark. Exact similarity of conditions is not necessary to permit introduction of evidence as to experiments but substantial similarity is required. The difference in conditions affects the weight rather than the admissibility of the evidence and the question of difference in the conditions is primarily a question for the trial court. Panhandle S. & F. Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347, er. ref.; Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777; 17 Tex.Jur., Sec. 142, p. 401. Generally it is said that experiments

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