Pure Oil Co. v. Crabb

• Decision Date: 22 May 1941
• Docket Number: No. 11141.,11141.
• Citation: 151 S.W.2d 962
• Parties: PURE OIL CO. et al. v. CRABB.
• Court: Texas Court of Appeals

151 S.W.2d 962

PURE OIL CO. et al. v. CRABB.

No. 11141.

Court of Civil Appeals of Texas. Galveston.

May 22, 1941.

Rehearing Denied June 12, 1941.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Action by Ben Crabb against the Pure Oil Company and E. C. Allen to recover for injuries sustained in automobile collision. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Vinson, Elkins, Weems & Francis, C. E. Bryson, and Gene M. Woodfin, all of Houston, for appellant Pure Oil Co.

Sam W. Davis, of Houston, for appellant E. C. Allen.

Thornton & Markwell, of Galveston, and Allen, Helm & Jacobs, of Houston (Russel H. Markwell, of Galveston, and Wm. States Jacobs, Jr., of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal is from a $25,000 judgment, entered by the 127th District Court of Harris County, on the pleadings, the evidence, and the verdict of a jury on 67 special issues submitted, in favor of the appellee, Ben Crabb. against the appellants, The Pure Oil Company and E. C. Allen, jointly and severally, as compensation found to be due him from them for personal injuries negligently inflicted upon him by them, on November 18 of 1938, at or near the intersection of Thompson and Cedar Bayou Roads in Harris County, in a collision between Crabb's automobile, driven by himself, and a truck owned by the Pure Oil Company and driven by E. C. Allen, its alter ego in the operation thereof at that time and place.

Irrespective of the detailed findings referred to, the undisputed evidence showed the Cedar Bayou Road to be running east and west, and the Thompson to have come into it from the north; that Crabb approached their intersection from a road to the south, which also, along a northeast and southwest curve, joined Cedar Bayou about opposite the western half of Thompson's intersection with it, en route north to his home via Thompson Road; while Allen, on the other hand, with his truck, came from the east along the Cedar Bayou Road towards Houston on the west; that the collision occurred just as dark was coming on, a pipe lashed to the left frontside of the truck and protruding ahead of it having struck the right side of appellee's car about where the windshield joined its hood, piercing the car, knocking it into the ditch, and shattering the appellee's knee; further, that appellee's wife and three small children were accompanying him, while appellant Allen's wife was likewise with him.

From the great number of issues so submitted, the jury, as indicated, found all controlling inquiries—both as to primary negligence and as to the ensuing discovered peril the court also submitted— favorably to the appellee, a substantially complete summary of the findings as a whole being thus quoted from the appellee's brief, to-wit:

"(1) The defendants' truck was driven in excess of 40 miles per hour.

"(2) Such driving was a proximate cause of the injuries.

"(3) The truck was driven in excess of 45 miles per hour.

"(4) Such speed was a proximate cause of the injuries.

"(5) The truck driver failed to keep a proper lookout.

"(6) Such failure was negligence.

"(7) Such negligence was a proximate cause of the injuries.

"(8) The truck driver failed to keep his truck under proper control.

"(9) Such failure was negligence.

"(10) Such negligence was a proximate cause of the injuries.

"(11) The truck driver could have turned the truck so as to avoid the collision.

"(12) He failed to turn so as to avoid the collision.

"(13) Such failure was negligence.

"(14) Such negligence was a proximate cause of the injuries.

"(15) The plaintiff's car started across the intersection before the defendant's truck entered the intersection.

"(16) At the time he started across the intersection, the plaintiff found no one approaching from his right at such distance as reasonably to indicate danger of collision.

"(17) The failure of the defendant's driver to yield the right of way to the plaintiff was negligence.

"(18) Such negligence was a proximate cause of the injuries.

"(19) `In crossing the Cedar Bayou Road' the plaintiff was in a position of peril.

"(20) The truck driver, at the time in question, discovered such peril.

"(21) The truck driver realized that the plaintiff probably could not or would not extricate himself therefrom in time to avoid injury.

"(22) He discovered such peril within such time and distance that by the exercise of ordinary care in the use of all the means at his command, consistent with his safety and that of his truck and its occupants, he could have avoided the collision.

"(23) He failed to exercise ordinary care to use all of such means to avoid injury to the plaintiff.

"(24) Such failure was a proximate cause of the injuries.

"(25) The injuries were not the result of an unavoidable accident.

"(26) The plaintiff did not fail to keep a proper lookout.

"(29) The plaintiff drove across the Cedar Bayou Road west of where the center line of the Thompson Road if projected south would intersect the center line of the Cedar Bayou Road.

"(29-a) Such driving was not a proximate cause of his injuries.

"(30) Such driving was not negligence.

"(32) The plaintiff in crossing the Cedar Bayou Road did not intend to turn to his left.

"(33-a) The plaintiff in entering the intersection failed to drive on the right hand side of the Thompson Road and to the south of the center of the intersection until he passed the same.

"(33-b) Such failure was not a proximate cause of his injuries.

"(38) Before the plaintiff entered the intersection he did not see the truck of the defendant Allen approaching such intersection from his right within such distance as reasonably to indicate danger of collision.

"(41) The plaintiff, in the exercise of ordinary care, should not have known that the defendant Allen approaching from the right would probably act upon the belief that he, Ben Crabb, would yield the right of way to the defendant.

"(46) As the plaintiff drove upon the intersection he could not have slowed his car to such a speed as to have avoided the collision.

"(50) As the plaintiff drove across the intersection he did not operate his car at a greater rate of speed than a person of ordinary prudence would have operated it under the same or similar circumstances.

"(53) After the plaintiff started his car across the Cedar Bayou Road he could not have stopped the same in time to have avoided the collision.

"(57) Prior to the time the plaintiff drove across the Cedar Bayou Road, his wife could not have signaled with her hand so as to show the defendant's driver that the plaintiff intended to drive across such road.

"(60) Immediately before the plaintiff drove across the Cedar Bayou Road his wife knew of the approach of the defendant's truck.

"(61) Immediately before the plaintiff drove across the Cedar Bayou Road his wife failed to warn him of the approach of the truck.

"(62) Such failure was not negligence.

"(64) The plaintiff's wife did not fail to keep a proper lookout.

"(67) $25,000.00 would fairly and reasonably compensate plaintiff for his damages."

At the outset, after a careful review of the statement of facts—at least in all respects wherein that labor has been properly invoked by either of the parties—this court has found no lack of sufficient support in the testimony for any of the stated findings; they must, therefore, be regarded on appeal as reflecting the developed facts over the whole controversy.

The main ones of appellants' 9 major contentions here may, in outline at least, be thus epitomized, after the manner of their own brief:

"(1) Under the testimony of the plaintiff, by which he is conclusively bound, and under the uncontradicted proof, as well as that which is conclusively established by the physical facts surrounding the collision, the plaintiff, Ben Crabb, was guilty of several distinct acts of negligence as a matter of law (even the jury found him negligent in two respects), and such negligence was the proximate cause of his injuries as a matter of law; therefore, the appellee cannot recover by reason of any alleged primary acts of negligence on the part of the defendants;

"(2) Under the plaintiff's own testimony by which he is conclusively bound, as well as the undisputed evidence and the physical facts which cannot be disputed, there is no liability under the doctrine of discovered peril, for the obvious reason that there is no basis in the proof for the application of such doctrine.

"(3) There is no basis in the pleadings to support the judgment here rendered against these defendants—this for the reason that the specific acts of negligence alleged, and that each of such acts was a proximate cause of the plaintiff's injuries, are so inconsistent and contradictory as to have the legal effect—the same not having been pled in the alternative or in separate counts—of nullifying all of said allegations of negligence, as well as of proximate cause;

"(4) The trial court committed many errors in the submission of the defendants' issues of contributory negligence on the part of plaintiff and his wife, as well as in the refusal to give to the jury certain requested issues, raised by the proof, relative to plaintiff's negligence, and as to whether such negligence was a proximate cause of the plaintiff's injuries;

"(5) While, in face of the uncontradicted proof and the physical facts, the issue of discovered peril was not raised, the trial court committed in the attempt to submit that question errors, which, if we understand the well-established rules of law governing such matters, require a reversal and remand of this case;

"(6) These appellants further contend that this case must be reversed and remanded by reason of the misconduct on the part of counsel for plaintiff and their arguments to the jury, which misconduct was fully developed by appellants' propositions Nos. 34-38, inclusive;

"(7) The verdict in this case is...