Richardson v. Impey, 2858.

Decision Date07 May 1936
Docket NumberNo. 2858.,2858.
Citation94 S.W.2d 490
CourtTexas Court of Appeals

Appeal from District Court, Polk County; J. L. Manry, Judge.

Suit by J. C. Impey against Harvey Richardson. From a judgment for plaintiff, defendant appeals.


Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

Campbell, Murphy & Cochran and Z. L. Foreman, all of Livingston, for appellee.

WALKER, Chief Justice.

On the 19th of February, 1934, appellee, J. C. Impey, was injured in a collision between a truck he was driving and a truck and trailer belonging to appellant, Harvey Richardson, which was loaded with a "boiler feed" unit. This was a suit by him against appellant for injuries suffered by him in the collision, and on trial to a jury his damages were assessed at $15,107.50. One ground of negligence, with proximate cause, pleaded, by appellee, submitted to the jury, and found in his favor, was as follows: "Plaintiff would further show to the Court that the trailer attached to said truck on which said load was then being carried was not properly aligned with said truck, and the wheels of said trailer were not tracking the wheels of said truck as the same should have, and by reason thereof the left wheel of said trailer tracked much to the left of the tracks made by the rear wheels of said truck; thus causing the trailer wheels to extend approximately two feet more to the left side than did the truck wheels, or to the center of the road when said truck was being driven on the right-hand side thereof." Appellant has regularly prosecuted his appeal from the judgment entered in appellee's favor on the jury's verdict.

One point at issue was the identification of the boiler feed unit. A Mr. Lee, witness for appellant, testified that on the day of the accident he passed a trailer and truck loaded with a boiler feed unit about two and one-half miles from the place of the collision, and that the next morning he saw a boiler feed unit near the place of the collision which he identified as being the same boiler feed unit he saw the day before. His identification of this machinery was positive and, therefore, not subject to the objection that it "was a conclusion of the witness."

One point of identification relied upon by Mr. Lee was that the feed unit he saw the day before the accident had a blue tool box and the one he saw the next morning also had a blue tool box. Controverting this testimony, appellant proposed to prove by Mr. Ed Richardson, the driver of the truck, but the testimony was excluded, that about 75 per cent. or 80 per cent. of boiler feed units used in the oil fields of the United States had blue tool boxes. This ruling was not error. There was no testimony that any other feed unit was seen near the place of the collision the day of the accident, the day before the accident, or the day following the accident, or that such a boiler feed unit was ever seen on that road before. The excluded testimony was too indefinite and general to have any probative force.

The witness Lee also testified that he passed the boiler feed unit about two miles and a half from the place of the accident; that the trailer was defective and was not "tracking" the truck, but "tracked" two or three or four feet too far to the left. This testimony was not subject to appellant's objection that the place where the witness saw the truck and trailer was so far from the place of the accident that it was without probative force as to the condition of the trailer at the time of the accident. The testimony was without dispute that from the place where Mr. Lee passed the truck and trailer to the place of the accident the driver did not stop his truck, did not readjust his load, and made no effort whatever to cure the defect that caused the defective tracking; on this testimony it was a reasonable deduction for the jury that the trailer continued to "track" too far to the left.

The pipes on the boiler feed unit extended over the side of the trailer and truck into the road. The court refused to permit appellant to prove by the owner that he contracted with appellant to...

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5 cases
  • Adams v. Queen Ins. Co. of America
    • United States
    • Alabama Supreme Court
    • 24 Mayo 1956
    ...of the automobile was positive and therefore not subject to the objection that it was a conclusion of the witness. Richardson v. Impey, Tex.Civ.App., 94 S.W.2d 490. Prior to the time the question was asked the witness it had been clearly shown that he was thoroughly familiar with the automo......
  • Willis Sears Trucking Co. v. Pate
    • United States
    • Texas Court of Appeals
    • 19 Marzo 1970
    ...1963, error ref. n.r.e.). We do not consider the language used in Hernandez to be applicable here. Richardson v. Impey, 94 S.W.2d 490 (Beaumont Tex.Civ.App., 1936, error dism.), is likewise distinguishable upon the facts. There, in the trial upon the merits, the testimony showed that the dr......
  • Adams v. Impey
    • United States
    • Texas Court of Appeals
    • 13 Julio 1939 the sum of $15,107.50, rendered by the district court of Polk County in favor of J. C. Impey against Harvey Richardson, Richardson v. Impey, 94 S.W.2d 490; writ of error to the Supreme Court was dismissed W. O. J.; writ of execution was issued on the judgment, directed to the sheriff of ......
  • McCrary v. Ogden
    • United States
    • Missouri Supreme Court
    • 12 Abril 1954
    ... ... In Richardson v. Impey, Tex.Civ.App., 94 S.W.2d 490, at ... page 491, the court said: 'The witness Lee also ... ...
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