Rankin v. Joe D. Hughes, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: Murray
• Citation: Rankin v. Joe D. Hughes, Inc., 161 S.W.2d 883 (Tex. App. 1942)
• Decision Date: 15 April 1942
• Docket Number: No. 11138.,11138.
• Parties: RANKIN v. Joe D. HUGHES, Inc., et al.

161 S.W.2d 883

RANKIN v. Joe D. HUGHES, Inc., et al.

No. 11138.

Court of Civil Appeals of Texas. San Antonio.

April 15, 1942.

Rehearing Denied May 13, 1942.

Appeal from District Court, 117th District, Nueces County; Cullen W. Briggs, Judge.

Action by V. C. Rankin against Joe D. Hughes, Incorporated, and others, for damages from an automobile collision. From an adverse judgment, plaintiff appeals.

Affirmed.

Sears, Blades, Moore & Kennerly, of Houston, D. S. Purl, of Corpus Christi, Sam R. Fisher and Geo. D. Neal, both of Houston, and Paul A. Martineau, of Corpus Christi, for appellant.

Vinson, Elkins, Weems & Francis and C. M. Hightower, all of Houston, R. H. Mercer, of San Antonio, and Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for appellees.

MURRAY, Justice.

This suit was instituted by V. C. Rankin in the District Court of Nueces County against Joe D. Hughes, Inc., Brown & Root, Inc., and Globe Indemnity Company, seeking to recover damages for injuries sustained by plaintiff when an automobile driven by him collided with the rear end of a truck parked upon Highway No. 9, in Nueces County. The collision occurred after nightfall on January 13, 1939.

The trial was to a jury and, upon answers made to special issues submitted, judgment was rendered that plaintiff take nothing. From this judgment appellant has prosecuted this appeal.

Twenty-three special issues were submitted to the jury and their answers to these special issues would have supported a judgment against Joe D. Hughes, Inc., and Brown & Root, Inc., in the sum of $22,500, except for the fact that in answer to special issue No. 16 the jury found that at the time of the collision Rankin was driving at a rate of speed in excess of forty-five miles per hour, and in answer to special issue No. 17, that such unlawful rate of speed was a proximate cause of the collision. In other words, the jury convicted the plaintiff of contributory negligence.

Appellant first contends that the answer of the jury to special issue No. 17 has no support in the evidence and should be disregarded. The jury found, by their answer to issue No. 17, that Rankin's driving his car in excess of forty-five miles per hour as he approached the place of the collision was a proximate cause of the collision. The evidence shows, among other things, that Rankin applied his brake when he was within about fifty or fifty-five feet of the parked truck and began to turn his car to the left. He failed to clear the truck, but did manage to turn his car enough to the left that only the right of his car struck the left of the truck and the load that it was carrying. It was a question of fact for the jury to determine from all the facts and circumstances whether or not if Rankin had been traveling at a slower rate of speed he might have been able to turn his car sufficiently to the left to have avoided the collision. There is evidence in the record to support the jury's answer to special issue No. 17. Anderson v. Reichart, Tex.Civ.App., 116 S.W.2d 772; Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982; Darden v. Denison, Tex. Civ.App., 3 S.W.2d 137.

Appellant's second point is that there is no evidence of probative force to support the jury's answer to issue No. 16, whereby the jury found that Rankin was operating his car at a rate of speed in excess of forty-five miles per hour. We overrule this contention.

The witness Ladd testified that he saw the lights from Rankin's car in the rearview mirror and judged, from the way the lights were dancing around in the mirror, that the Rankin car was coming very fast. Ladd estimated the speed of the Rankin car at sixty or sixty-five miles per hour. He based his opinion not only on the way the lights were dancing in the mirror but also on the smoothness of the road, the distance covered and the force of the impact.

The witness Klett estimated the speed of the Rankin car at sixty miles per hour. He was a State Highway Officer and had investigated a number of automobile collisions on highways. He based his opinion on the skid marks on the pavement, the damage done to the two cars, etc. The testimony of Templin, another State Highway Officer who viewed the scene of the collision, was about the same as that of Klett. The testimony of these three witnesses was competent testimony and was sufficient to raise the issue of excessive speed.

Appellant next contends that the jury's answer to issue No. 17 is in conflict with the answers to issues Nos. 14, 18, 20, 21 and 22. These issues, together with the jury's answers thereto, are as follows:

"Special Issue No. 14. Do you find from a preponderance of the evidence that the plaintiff, V. C. Rankin, as he approached the place of the collision, failed to keep a proper lookout, as that term has been hereinbefore defined for you? Answer `Yes' or `No.'

"We, the jury, answer: No. * * *

"Special Issue No. 18. Do you find from a preponderance of the evidence that plaintiff, V. C. Rankin, as he approached the place of the collision, failed to have his car under such control as a person of ordinary prudence would have had, under the same or similar circumstances? Answer `Yes' or `No.'

"We, the jury, answer: No. * * *

"Special Issue No. 20. Do you find from a preponderance of the evidence that the failure of plaintiff, V. C. Rankin, to apply his brakes in time to avoid colliding with the rear truck was negligence, as that term has been hereinbefore defined for you? Answer `Yes' or `No.'

"We, the jury, answer: No. * * *

"Special Issue No. 21. Do you find from a preponderance of the evidence, that the plaintiff, V. C. Rankin, as he approached the place of the collision, was operating his car at such a rate of speed that it...