Polasek v. Quinius
| Decision Date | 05 March 1969 |
| Docket Number | No. 11644,11644 |
| Citation | 438 S.W.2d 828 |
| Parties | Mary Sue POLASEK et al., Appellants, v. Susan QUINIUS, Appellee. . Austin |
| Court | Texas Court of Appeals |
Byrd, Davis, Eisenberg & Clark, Don L. Davis, Tom H. Davis, Clark, Thomas, Harris, Denius & Winters, Robert C. McCreary, Austin, for appellants.
Alvis & Carssow, John F. Campbell, Austin, Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, for appellee.
O'QUINN, Justice.
This is an intersection accident case.
Appellants are Mary Sue Polasek, plaintiff in the trial court, and Harry Manners intervenor, who brought this action against Susan Quinius, appellee, for personal injuries and property damages sustained in an automobile collision at an intersection of two streets in Austin, Texas. The trial court entered a take nothing judgment against appellants based on jury findings of contributory negligence.
Appellants on appeal bring fifteen points of error. Under points one through twelve appellants urge that jury findings of negligence on the part of plaintiff under several special issues are without support in the evidence and are against the great weight and preponderance of the evidence. The last three points of error are directed to failure of the trial court to give requested instructions on standard of care required in a sudden emergency, and, alternatively, requested issues with regard to the doctrine of imminent peril.
Appellee contends under two cross points of error that the trial court erred in not admitting defendant's evidence that failure of plaintiff to wear her seat belt was a causation of injury as well as an aggravation of injury. Under a third cross point appellee urges error of the trial court in setting aside and disregarding jury findings of negligence and proximate cause as to appellants' conduct after the collision with defendant.
The collision made the basis of this suit occurred about 7:30 o'clock on the morning of June 21, 1966, at the intersection of Northland Drive and Louise Lane. Northland Drive is a main traffic artery, running generally east and west, and has two lanes for eastbound traffic and two lanes for westbound traffic. Louise Lane is a residential street that joins Northland Drive from the north forming a 'T' intersection.
The collision occurred when an automobile driven by Susan Quinius, the defendant, after stopping on Louise Lane before entering the intersection, proceeded into the intersection and struck the left rear door of the automobile plaintiff was driving easterly on Northland Drive.
When this collision took place, the automobile plaintiff was driving went out of control, veered to the right, then to the left, crossed over the center stripe on Northland Drive, and collided with another automobile being driven westerly on Northland Drive.
At the time of the accident the plaintiff, Mary Sue Polasek, and her husband, John Polasek, were going from their home west of Austin to the University of Texas, where John Polasek was enrolled as a student. Mrs. Polasek was driving an automobile owned by her father (Harry Manners, intervenor), and her husband was riding as a passenger in the front seat. John Polasek was reading a text book in preparation for a quiz in a history course at the University and was not aware of events related to the accident until the Polasek car collided with the second automobile.
Mrs. Polasek was severely injured about her head and face and was rendered unconscious. At the trial Mrs. Polasek had no memory of the collision itself. She last remembered driving in a residential area west of Austin, some distance from the place of the collision, and later recalled 'waking up in the hospital.'
Susan Quinius, the defendant, testified that she stopped at the intersection and waited for several cars to pass before entering Northland Drive from Louise Lane. She testified that she did not see the Polasek vehicle until after she pulled out into the intersection. When she saw the Polasek car, it was 'right in front' of her, when she was already into her turn to proceed easterly on Northland Drive.
Judy Lester was riding with Susan Quinius in the front seat as a passenger, and was the only witness who described the relation of the two vehicles prior to the collision. July Lester testified that she warned Susan Quinius twice before the collision with the Polasek car. Judy Lester gave the following testimony:
'A Well, when she first started out into the intersection, I said, 'Susan,' and she said, 'I see the car.' Then when she continued on, I said, 'Susan, the car,' and by that time the Dart had collided with the car.
Q And did it take about that time to do it?
A Yes, sir.
Q And which you would estimate was what, about a second?
A Maybe one or two.
Q One or two seconds?
A Yes, sir.
Q * * * So had you been driving, you would not have pulled out?
A No, sir.
Q And regardless of what the distance was or what your estimate might be in there, the reason you wouldn't have, of course, was it was too close to pull out?
A Yes, sir.
Q In other words, it was apparent to you when you saw it that if the car pulled out there was going to be a collision?
A Yes, sir.
Q At the time Miss Quinius pulled out, the Polasek vehicle was so close that there was not a reasonable opportunity in your opinion of it clearing the intersection without danger of a collision?
A That's correct.'
In response to special issues the jury found that:
(1) Defendant failed to keep a proper lookout;
(2) This failure was a proximate cause of the collision;
(3) Defendant turned left into Northland Drive at a time when she could not do so with safety;
(4) That this was a proximate cause;
(5) Defendant started from a stopped position when she could not do so with safety;
(6) Which was a proximate cause;
(7) Defendant failed to heed the warning given by her passenger;
(8) That this was negligence;
(9) And was a proximate cause of the collision.
The plaintiff requested special issues on discovered peril and also requested instructions on sudden emergency, both of which requests were refused by the trial court.
The jury found that:
(1) Plaintiff failed to keep a proper lookout;
(2) That this failure was a proximate cause;
(3) Plaintiff failed to make proper application of her brakes;
(4) That this was a proximate cause;
(5) Plaintiff failed to turn her vehicle to the right;
(6) That this was negligence, and
(7) Was a proximate cause.
In addition, the jury found that:
(a) Plaintiff sustained some injury as a result of the collision with defendant's vehicle;
(b) That following the collision with defendant's vehicle plaintiff failed to make proper application of her brakes; and
(c) This failure was a proximate cause.
The two findings last noted were disregarded by the trial court on the ground that there was no evidence to support the findings. The jury found that plaintiff and intervenor were damaged in the total amount of $29,880.55.
In deciding this case, we must first examine the record to determine whether the findings of contributory negligence are supported by the evidence. The foremost question is whether the plaintiff, prior to the first collision, failed to keep a proper lookout, failed to make proper application of her brakes, and negligently failed to turn her vehicle to the right.
It is undisputed that as plaintiff's vehicle approached the scene of the collision the defendant was stopped at the corner of Louise Lane and Northland Drive. Judy Lester, the passenger riding with defendant, testified that defendant had stopped 'right at the intersection line' and 'waited for a few cars to go by.'
The defendant testified she did not see plaintiff's car approaching from her right until the vehicle was in front of her and immediately before defendant struck it on the left rear door with the front of her car.
When asked whether she looked before entering Northland Drive, defendant testified:
'A Yes, sir. I looked both ways. There were cars coming. It was, you know, eight o'clock traffic.
Q In other words, you had to wait there a moment for traffic to clear the intersection?
A Yes, sir, I waited for quite a few cars to go back and forth.
Q So you waited there for several cars to clear and go by?
A Yes sir, I did.'
Plaintiff because of her injuries, had no recollection of the collision. Her husband, who was reading a book, was unable to give any evidence bearing on events prior to the collision.
The only witness able to describe the relation of the two vehicles immediately before the impact was Judy Lester, defendant's passenger . Her testimony was given in part from a scale drawing introduced in evidence showing the intersection and related physical objects in the surrounding area. When Judy Lester first saw plaintiff's car, defendant was still stopped at the intersection line, and plaintiff's car was 'about where the power pole is,' a distance of some 220 feet west from the intersection of the center line of Louise Lane with the center line of Northland Drive, as shown by the scale drawing.
When the defendant 'started out' into the intersection Judy Lester testified, the plaintiff's car had reached a point 'about where the church entrance was,' a distance of less than 90 feet west of the point of intersection of the center lines of the two streets. It was at this time that Judy Lester warned defendant twice before defendant struck plaintiff's vehicle. The period elapsing was 'maybe one or two' seconds.
Judy Lester's testimony describing the warnings we have quoted above. The reaction of Judy Lester to the close proximity of plaintiff's car when defendant entered the intersection is found in her testimony as follows, part of which we quoted above:
'Q You were somewhat surprised when she pulled out?
A Yes, I was.
Q In other words, the car was close enough that you wouldn't have pulled out had you been driving?
A Yes, sir.
Q In other words, it was apparent to you when...
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