Reddick v. Longacre

• Decision Date: 24 February 1950
• Docket Number: No. 15109,15109
• Citation: 228 S.W.2d 264
• Parties: REDDICK et al. v. LONGACRE et al.
• Court: Texas Court of Appeals

Page 264

228 S.W.2d 264

REDDICK et al. v. LONGACRE et al.

No. 15109.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 24, 1950.

Rehearing Denied March 24, 1950.

Kemper, Wilson & Schmidt, all of Houston, Nelson, Montgomery & Robertson, all of Wichita Falls, Chaney & Davenport, and Francis M. Chaney, all of Dallas, for appellants.

Frank H. King, of Terrell, Allen, Locke & Kouri, all of Wichita Falls, and Barnes & Barnes, and W. H. Barnes, all of Terrell, for appellee Ward Longacre.

Dawson, Jones & Parish, all of Wichita Falls, for appellees V. L. McCurdy, J. L. Bailey and C. R. Jackson, designated as Third Party Defendants.

HALL, Justice.

Appellee Ward Longacre sued appellants J. E. Reddick and his truck driver, J. T. Abbott, in a district court of Wichita County for injuries which he alleged to have received in an explosion of a truck owned by Reddick and driven by Abbott while appellee Longacre was rescuing Abbott from appellant Reddick's burning truck after it had collided with another motor vehicle.

Appellants Reddick and Abbott in turn sued Bailey, McCurdy and Jackson, alleging if judgment be recovered against appellants they were entitled to contribution against said Bailey, McCurdy and Jackson, owners and operators of the other truck.

Trial was to a jury and the trial court, based upon its answers to 101 special issues, rendered judgment in favor of appellee Ward Longacre and against appellants J. E. Reddick and J. T. Abbott, in the sum of $20,000.00. The trial court further denied recovery for contribution in favor of Reddick and Abbott and against Bailey, McCurdy and Jackson; thus denying appellants' motion for judgment notwithstanding the verdict; for instructed verdict and their motion for judgment on the verdict.

Appellants' appeal consists of eleven points. First point is as follows:

'Since the uncontradicted evidence in this case, as introduced by Plaintiff, showed the sudden turning movement of Bailey was the proximate cause of collision, and further showed all testimony to the contrary to be in conflict with physical law and impossible, the Court should have granted defendant's Motion for Judgment and Defendant's Motion for Judgment notwithstanding the verdict of the jury. * * *'

We interpret point No. 1 to assume a position wherein all the evidence in the case reveals a physical state of facts of an impossibility to the end that it is inconceivable that the wreck could have occurred as the evidence introduced by appellees reveal and that this court should take judicial notice of such incredible testimony.

It is sufficient for us to state that appellees' testimony adduced upon the trial reflects that the butane truck owned and operated by appellants, weighing 47,700 pounds, while approaching a produce truck, suddenly and without warning pulled to the left in front of the produce truck, thereby forcing the produce truck driver to turn to his left in order to avoid a head-on collision, then appellants' truck suddenly turned to its right, meeting the produce truck and causing the collision. Appellants denied the truthfulness of appellees' testimony, which became an issue of fact. The jury resolved the issue of fact against appellants' contention in the following manner, to-wit: That Abbott drove the butane truck on his left hand side of the highway immediately prior to the collision and same was within fifty yards of the produce truck at the time Abbott was driving the butane truck on the left hand side of the highway; that said act was negligence and was proximate cause of appellee's injuries; that Abbott failed to stop the butane truck immediately prior to the collision; that same was negligence and proximate cause of the injury to appellee; that Abbott failed to keep a proper lookout and same was negligence and proximate cause of appellee's injuries; that Abbott failed to keep his truck under proper control immediately prior and at the time of collision and same was negligence and proximate cause of injuries to appellee; that Bailey's truck was in a perilous position immediately prior to the collision; that Abbott discovered such perilous position, that such discovery was made in sufficient time, by Abbott, to have avoided the accident; that Abbott failed to use all means at hand consistent to his safety and safety of his truck to avoid the collision; that such failure was negligence and proximate cause of appellee's injuries; that appellee Ward Longacre believed Abbott was in a position of peril immediately after the collision; that Abbott was in a position of peril; that said appellee believed he could successfully rescue appellant Abbott, that appellee Longacre removed appellant Abbott from the cab of his butane gas truck immediately after the collision; that said appellee assisted Abbott away from said butane truck; that appellee Longacre was free from negligence while doing so; that appellee Ward Longacre was damaged in the amount of $20,000.00; that J. L. Bailey did not fail to keep a proper lookout; that J. L. Bailey drove his truck on his left hand side of the highway as he was about to pass the butane truck approaching from the opposite direction, but that same was not negligence; that Bailey attempted to pass the butane truck on Bailey's left hand side of the highway but that same was not negligence; that Bailey did not suddenly turn his truck on the left hand side of the highway; that he did not make a sudden turning movement to the left, that he did what an ordinary prudent person would have done under the same or similar circumstances; that appellant Abbott changed the course of the butane truck and cut back to the right side of the highway on the occasion of the collision and failed to give any signal before changing his course, that same was negligence and proximate cause of the injuires to Longacre; that appellant Abbott operated the butane truck at a dangerous and excessive rate of speed under the conditions existing and same was negligence and proximate cause of said appellee's injuries; that appellant Abbott forced J. L. Bailey to turn his truck to the left to avoid a head-on collision and same was negligence and proximate cause of the injuries to appellee Longacre.

Appellants contend further the jury did not have an opportunity to pass upon the issue of whether or not cross defendant J. L. Bailey was negligent in driving his vehicle to his left so close in time and space to the point of collision and whether a reasonable and prudent man situated as Bailey was situated would have done as he did in order to avoid a collision. Such questions, we think, were submitted to the jury in issues based upon whether Bailey's conduct in pulling to the left to avoid the accident was negligence.

We might reveal some of appellee's testimony here by stating that appellee Ward Longacre was walking along the highway where the accident occurred. About the time the produce truck passed him he heard a noise which caused him to look back in time to see the impact. Some of his testimony pertaining to the issue is as follows:

'A. My first instinct was to run, I started across the highway and by that time the collision had already taken place and the butane truck had turned over and rolled down into the bar ditch by the side of the road and up the bank onto the railroad.

'Q. That was on the south side of the highway? A. Yes, sir. That was all on the south side of the highway. I glanced back as I spun around and near the edge of the pavement butane gas had spilled and was already catching fire.

'Q. About how far was that butane gas that was on fire back of the butane truck? A. It was about 40 or maybe 50 feet.

'Q. All right. A. And I immediately saw the driver of the butane truck, he was unconscious or appeared to be unconscious and he had slumped over the wheel of his truck, so I ran to the cab as fast as I could and immediately got him out and started back towards the pavement away from the truck, I had gone just a few feet, I hadn't quire reached the pavement when the truck exploded, and after the explosion I don't remember much that took place except we crossed the road and got up to the house where Mr. Sanders lives and he took us to town.

'Q. Ward, when you looked up the highway there and saw this butane gas burning which you say was some forty or fifty feet north of the butane truck, and then you said you immediately looked and saw this driver in there slumpted over the wheel of the truck and apparently unconscious, what was your first impulse or instinct to do? A. My first impulse was to get him out.

'Q. Did you set about to do that? A. Yes, sir.

'Q. Did you know the man? A. No, sir, I did not.

'Q. How long would you say it was, Ward, from the time of the collision that you had Abbott dragging him away from the butane truck? A. I don't believe it could be over two minutes and probably a few seconds under that.

'Q. It all happened in rapid fire order? A. Yes, sir. A matter of seconds.

'Q. All right just tell this jury how you caught hold of him, and how you got him out of there? A. He was slumped forward over the wheel and I reached in and grabbed him under the arm pits and pulled him out, and as he came out of the cab he was already up and pretty well above my waist so I grabbed my arm around him and let his feet drag and I started dragging him towards the highway to get away from the banks.

'Q. About how far would you say you were away from the truck when it exploded? A. Approximately maybe 20 or 25 feet.

'Q. What did you believe would happen to Abbott the man that had been the driver of the butane truck if he was not rescued and taken out of there? A. I believe he would have been burned to death.

'Q. And was that truck burned up? A. Yes, sir, it was.

'Q. What did you do after the explosion occurred and you caught on fire? A. I rolled to put the fire out, I took off my field jacket trying to ge the fire off of my face and hands with my jacket and clothing.

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