Rial v. Curtis, 12774

• Citation: 274 S.W.2d 117
• Decision Date: 09 December 1954
• Docket Number: No. 12774,12774
• Parties: Robert Milton RIAL et al., Appellants, v. Carl CURTIS, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 117

274 S.W.2d 117

Robert Milton RIAL et al., Appellants, v. Carl CURTIS, Appellee.

No. 12774.

Court of Civil Appeals of Texas, Galveston.

Dec. 9, 1954.

Rehearing Denied Jan. 13, 1955.

Dyess, Dyess & Jennings, and Max H. Jennings, Houston, for appellant Robert Milton Rial.

Fulbright, Crooker, Freeman, Bates & Jaworski and W. N. Arnold, Jr., Houston, for appellant Boehck Engineering Co., Inc.

Philip M. Shafer, J., Curtiss Brown, and W. James Kronzer, Houston, and Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellee.

HAMBLEN, Justice.

This is a damage suit arising out of a collision between an automobile driven by the appellant Rial, and the appellee Curtis, a pedestrian. The trial in the District Court of Harris County was before a jury, which, in response to special issues submitted, found the appellant Rial negligent on seven counts, each proximately causing the collision and resulting damages. The jury acquitted the appellee of negligence on each of the grounds alleged by the appellants, and found that the collision was not the result of an unavoidable accident. Damages were assessed by the jury in the sum of $20,750, $204.45 of which was voluntarily remitted by appellee. Joint and several judgment in the sum of $20,545.55 was rendered in appellee's favor against appellant Rial, and appellant Boehck Engineering Co., the latter being the employer of Rial, and being sued under the doctrine of respondeat superior. Judgment in the same amount was rendered in favor of appellant Boehck Engineering Co. upon its cross-action against appellant Rial.

Appellants present three points, none of which, for the reasons which we will state, assert error which requires a reversal of the judgment entered.

The collision occurred at the intersection of Broadway and La Porte Road in the City of Houston. Broadway runs approximately north and south. La Porte Road runs approximately east and west, and intersects Broadway from the east, but does not cross Broadway, thus forming a 'T' shaped intersection, which compels vehicles travelling west on La Porte Road, upon reaching the intersection, to turn either to the right and north on Broadway, or to the left and south on Broadway. Both vehicular and pedestrian traffic at the intersection is controlled by traffic signal lights and arrows, and pedestrian lanes are marked or painted on the street pavement. The traffic signals are so arranged that vehicular traffic from La Porte Road turning to the left into Broadway is permitted to move simultaneously with pedestrian traffic from the west side of Broadway crossing to the southeast corner of the intersection. Both streets are of sufficient width to permit the movement of two lanes of vehicular traffic in each direction.

Appellant Rial testified that immediately prior to the collision he was proceeding west on La Porte Road, travelling in the inside lane in order to make a left turn into Broadway. That he stopped at the intersection in compliance with the existing traffic signal, and upon the proper signal being indicated, he proceeded into the intersection at a speed of 10 to 12 miles per hour, and turned his automobile to the left. After so turning, and after he had crossed the marked pedestrian lane across Broadway some 12 to 15 feet, appellee stepped suddenly in front of his vehicle, too close thereto to permit appellant to stop or otherwise avoid striking appellee. Appellant Rial testified that as he negotiated the turn to the left, he looked and saw no one in the pedestrian lane crossing Broadway, but that he saw appellee standing on the curb some 12 or 15 feet south of the pedestrian lane, and that appellee gave no indication of an intention to cross in front of his vehicle. Rial's testimony as to appellee's location south of the pedestrian lane immediately before and at the time of the collision was corroborated by the witness, Mrs. J. D. Baisden, III. This witness estimated the automobile's speed at 20 or 21 miles per hour.

Appellee testified that immediately before the collision he was standing on the west side of Broadway awaiting the proper signal before proceeding across to the southeast corner of the intersection; that he was familiar with the intersection and the traffic control signals, and that traffic was very heavy at the time. That upon the proper signal being indicated, he looked to the right and to the left, and seeing no vehicles approaching, proceeded to cross Broadway within the marked pedestrian lane. When he had taken from two to five steps in that direction, he looked to his left, and saw appellant Rial's vehicle approaching him at approximately 30 miles per hour and some 12 to 15 feet distant from him. Appellee's testimony as to his location within the pedestrian lane was corroborated by the witness Odom, who estimated Rial's speed at 18 miles per hour. No witness testified to having seen Rial's vehicle until it was in the intersection turning to the left. The jury found that appellee was in the pedestrian lane.

Appellants' points one and two are directed to the asserted error of the trial court in overruling their motions for instructed verdict, and for judgment non obstante verdicto, both of which motions, as well as their points so numbered, are based upon the proposition that the facts as heretofore...