Renfroe v. Ramsey

• Decision Date: 23 February 1972
• Docket Number: No. 596,596
• Parties: Danny Lavelle RENFROE, Appellant, v. Joseph RAMSEY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 648

477 S.W.2d 648

Danny Lavelle RENFROE, Appellant, v. Joseph RAMSEY, Appellee.

No. 596.

Court of Civil Appeals of Texas Houston (14th Dist.).

Feb. 23, 1972.

Tom M. Davis, Jr., Charles G. King, III, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.

Thomas N. Thurlow, Edward J. Hennessy, Houston, for appellee.

BARRON, Justice.

This is an appeal from an order overruling a plea of privilege. Joseph Ramsey filed suit for injuries sustained in an automobile collision alleged to have occurred in Harris County, Texas. Danny Lavelle Renfroe filed a plea of privilege seeking to transfer the cause to his county of residence, Caldwell County. Plaintiff Ramsey controverted on the basis of Vernon's Tex.Rev.Civ.Stat.Ann. Art. 1995, subdivision 9a (1960), urging that venue lay in Harris County, allegedly the situs of the accident. At the hearing on the plea of privilege, following brief testimony by plaintiff, the plea was overruled. Defendant Renfroe's appeal brings that decision before us for our consideration.

Appellant's sole point of error contends that the record reveals no evidence to establish any of the venue facts of Subdivision 9a. Subdivision 9a provides as follows:

'Negligence.--A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:

1. That an act or omission of negligence occurred in the county where suit was filed.

2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.

3. That such negligence was a proximate cause of plaintiff's injuries.'

To demonstrate the first of these three elements appellee invokes Tex.Rev.Civ.Stat.Ann. Art. 6701d, Sec. 71(c) (1971), which reads,

'The driver of a vehicle on an unpaved street or roadway approaching the intersection of a paved roadway shall stop, yield and grant the privilege of immediate use of such intersection to any vehicle on such paved roadway which is within the intersection or approaching such intersection in such proximity thereto as to constitute a hazard, and after so stopping may only proceed thereafter when such driver may Safely enter the intersection without interference or collision with traffic using such paved street or roadway.' (Emphasis added)

This statute is said to establish an absolute standard of conduct so that any breach of that standard constitutes negligence per se. We do not agree. That section is one of those 'provisions couched in broad and vague terms which arguably include the 'reasonable man' standard.' J. Ratliff, Negligence Per Se in Texas: An Analysis of Statutory Excuse and Related Doctrines With Proposed Special Issues and Instructions, 41 Tex.L.Rev. 104, 114 (1962). Violation of statutory standards of conduct which are phrased in terms such as 'plainly visible' or 'with safety' has been held by Texas courts not to constitute negligence per se, and instead the reasonable man standard has been read into the statute. E.g.,Missouri-Kansas-Texas R.R. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956); Booker v. Baker, 306 S.W.2d 767 (Tex.Civ.App.--Dallas 1957, writ ref'd n.r.e.); Williams v. Price, 308 S.W.2d 185 (Tex.Civ.App.--Fort Worth 1957, writ ref'd n.r.e.); and see Craker v. City Transportation Company of Dallas, 316 S.W.2d 447 (Tex.Civ.App.--Texarkana 1958, writ ref'd n.r.e.). We think that the duty imposed by sec. 71(c) upon a driver on an unpaved road is not absolute, but rather is conditional. Whether the appellant could 'safely' enter the intersection without interference or collision with traffic using such paved street or roadway is a question of fact to be determined from the evidence. The prudent driver standard must be applied in determining whether appellant-defendant Renfroe's conduct was negligent. A similar conclusion was reached in the recent case of Hemphill v. Meyers, 469 S.W.2d 327 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.), which concerned art. 6701d, sec. 74 imposing upon a driver entering a highway from a private road a duty to yield the right-of-way to all vehicles approaching on the highway. The Court of Civil Appeals, cited for support Warren Petroleum Company v. Thomasson, 268 F.2d 5 (5th Cir. 1959). Section 74 contains no subjective standards such as 'with safety' or 'safely,' but is cast in seemingly mandatory language. If the language of section 74 provides less than an absolute statutory standard of conduct, then surely section 71(c), preventing one driver's proceeding until he 'may safely enter the intersection without interference or collision,' provides less than an absolute statutory standard. We think this language means 'until a reasonable man so situated would think he could safely enter the intersection.'

The bare fact of a collision at an intersection of paved and unpaved roads does not prove negligence. Other circumstances also must be considered. Employing the philosophy of the above cases, the driver entering on the unpaved road still, under all the surrounding circumstances, may have acted 'safely' in so entering the intersection, even though his action in fact caused the collision. Perhaps it is more proper conceptually to say that the fact of a collision necessarily proves that it was unsafe and thus negligent to enter the intersection. In that case the notion of reasonableness and prudence arises only at the point of a statutory excuse to exonerate defendant for violating the statute. However, the net result as to the defendant is the same whether the trial court applies that concept or applies the procedure of reading the reasonable man standard directly into the statute, and Texas courts have adopted the latter of these two approaches. Whether the defendant driver's actions were such that he 'safely' entered the intersection is for a trier of facts to determine based upon competent evidence.

We have carefully searched appellee's meager testimony, the only evidence in the record. There is evidence that appellee was involved in a collision in Harris County at an intersection where the paved road on which he was traveling crossed an unpaved street. But there is...