Pitts v. Barclay
| Decision Date | 20 March 1964 |
| Docket Number | No. 16504,16504 |
| Citation | 377 S.W.2d 750 |
| Parties | C. C. PITTS, Appellant, v. A. G. BARCLAY, Appellee. |
| Court | Texas Court of Appeals |
Jones, Fillmore, Robinson & Lambert and Larry Lambert, Wichita Falls, for appellant.
Jack Fields, Port Lavaca, Short & Smith and Donald E. Short, Wichita Falls, for appellee.
From a judgment for plaintiff A. G. Barclay in a suit for damages resulting from an automobile-truck collision, the defendant C. C. Pitts appealed.
Judgment reversed and remanded.
The collision giving rise to the suit occurred on U. S. Highway No. 62 in the State of Oklahoma, approximately two (2) miles south of the town of Apache. The road in the vicinity of the collision is asphalt pavement, approximately 20-22 feet in width, with shoulders of only about 5 feet to either side. The highway runs in a general direction from south to north. About 150 feet (or 50 yards) south of the point of the collision is the crest of a hill. As one drives from south to north there is a sign at the crest of the hill informing motorists that they are approaching a dangerous curve to the right and that said curve lies '800 feet ahead'. This means, of course, that the point of the collision was approximately 650 feet south of the point where a northbound motorist would encounter the curve and on the slope between the crest of the hill and the beginning of the curve.
The collision occurred in the nighttime and when it was raining, the pavement of the roadway being wet and slick.
The defendant was in the business of hauling sand and gravel and crushed rock. Pursuant to this business he had several trucks with semitrailers attached, and employed several drivers to operate the same. On the night of the collision two of these drivers, each with a truck and semitrailer, delivered sand to a consignee in Lawton, Oklahoma, after which they drove a few miles north to a rock crushing plant off the highway. Both trailers were loaded with crushed rock. The drivers of the trucks, hauling the loaded crushed rock, drove onto Highway No. 62 and proceeded toward Apache. They were driving in a northerly direction.
The first of the two trucks reached the curve aforementioned, and either while negotiating it or in the process of entering it his truck went out of control so that it 'jackknifed' and came to a stop partly on the paved portion of the highway and partly on the shoulder or in the ditch at the right-hand side thereof. The second truck was some distance behind the first when this occurred. Its driver became aware of the occurrence after passing the crest of the hill when the headlights of the truck 'settled down' upon the roadway ahead as it started on the downgrade toward the curve. It was at this time that the second truck went out of control and 'jackknifed' on the roadway north of the crest of the hill, but south of the curve. Repeating: this second truck and semitrailer came to a stop on the downslope to the north about 150 feet (or 50 yards) north of the crest of the hill, and still a considerable distance (approximately 650 feet) from the point where the first truck and semitrailer was stopped (in 'jackknifed' position) on the curve.
The driver of the second of the two trucks was aware of the fact that the automobile of the plaintiff was traveling toward the north on the same highway and was behind his trailer. When the second truck and semitrailer 'jackknifed' and came to a stop the semitrailer was across and completely obstructing the right-hand side (east side) of the paved portion of the highway. The front thereof was stopped pointing toward the east and rear end of the trailer was two or three feet across and upon the west side of the pavement. The truck-tractor portion of the vehicle was to the north of the semitrailer, with the front portion, and the burning headlights, toward the west.
As the driver of the second truck prepared to get out of the truck cab immediately after his vehicle came to a stop, but before he got out, the automobile of the plaintiff had struck into the right side of the semitrailer and into the underpart of the same. The left front of plaintiff's automobile was damaged extensively, as was the left front portion of the top, and the windshield post supporting the same.
As applied to plaintiff, what had occurred was that he 'topped' the crest of the hill and started down the slope to the north, whereupon his headlights disclosed the presence of the defendant's second truck obstructing the pavement, or at least the right-hand or east one-half thereof, whereupon he applied his brakes and skidded (on the wet pavement) into the side of the semitrailer. By its answers to special issues, the jury acquitted the plaintiff of any act or omission asserted by the defendant as contributory negligence. The jury also found that the collision and resulting injuries and damages sustained by the plaintiff were not the result of an unavoidable accident.
In the court's charge to the jury the term 'proper control' was defined as 'such control that a person of ordinary prudence would have kept under the same or similar circumstances'. There was no complaint of the term as so defined. By answer to Special Issue No. 7 the jury found that the driver of the second of the defendant's trucks 'failed to keep the truck under proper control at the time and on the occasion in question'. By an appended issue the jury found such failure to have been a proximate cause of the collision therewith involving the plaintiff.
By negative answers returned to special issues the jury...
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Barclay v. C. C. Pitts Sand & Gravel Co.
...general submission of negligence. The judgment of the trial court was accordingly reversed and the cause remanded for a new trial. 377 S.W.2d 750. We granted petitioner's application for writ of error to consider the holding on which the Court of Civil Appeals based its judgment. Respondent......
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Howell v. Sanders
...recently been held again that a global submission of various acts of negligence in one broad issue is improper.' Citing Pitts v. Barclay, Tex.Civ.App., 377 S.W.2d 750. We think appellant's contention is answered adversely to him by our Supreme Court in Kainer v. Walker, Tex., 377 S.W.2d 613......
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