Roddy v. Herren

• Decision Date: 09 February 1939
• Docket Number: No. 10711.,10711.
• Citation: 125 S.W.2d 1057
• Parties: RODDY v. HERREN et al.
• Court: Texas Court of Appeals

125 S.W.2d 1057

RODDY v. HERREN et al.

No. 10711.

Court of Civil Appeals of Texas. Galveston.

February 9, 1939.

Rehearing Denied March 1, 1939.

Appeal from County Court at Law No. 2, Harris County; Frank Williford, Jr., Judge.

Action by E. L. Herren and others against Coleman Roddy to recover property damage done to an automobile. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wood & Morrow and M. S. McCorquodale, all of Houston, for appellant.

Warren P. Castle, of Houston, for appellees.

GRAVES, Justice.

This statement, thought to be correct, is taken from appellant's brief:

"Plaintiffs below, the St. Paul Fire & Marine Insurance Company and E. L. Herren, sued Coleman Roddy, defendant below, for property damage done to an automobile owned by Mr. and Mrs. E. L. Herren in a collision with a truck owned by the defendant Roddy. Under a subrogation agreement, the Insurance Company paid Herren all but $50.00 of his claim and sued to recover from Roddy. Herren sued for $50.00.

"The Herren car was driven by Mrs. E. L. Herren, wife of the plaintiff. The truck, owned by Coleman Roddy, was driven by an employee, J. W. Young, acting within the scope of his employment.

"Trial by a jury was waived. The court, after hearing the evidence rendered judgment in favor of the plaintiffs against defendant and defendant appealed. Conceding that the evidence is sufficient to sustain the finding of the trial court that the defendant was negligent, the defendant appeals upon the sole ground that under the evidence offered by the plaintiff and under the undisputed evidence, Mrs. E. L. Herren was guilty of contributory negligence which proximately caused the collision in question, as a matter of law.

"The accident occurred at about 3 P. M. Saturday, April 4, 1936, within the city limits of Houston, at the intersection of Telephone Road and Griggs Road."

Under its conclusion that the trial court was correct in holding Mrs. Herren not shown to have been guilty of contributory negligence that constituted the proximate cause of the collision, no written opinion is required of this court; however, this much of the appellee's brief is quoted with approval, as showing the main grounds upon which an affirmance is ordered:

"If there is any evidence of contributory negligence, it is rebutted by evidence of due care by Mrs. Herren. If all the evidence proves contributory negligence, then the effect of contributory negligence as the proximate cause of the collision is prevented by the intervention of Young's knowledge of the danger and his failure to prevent the collision. Plaintiffs will first show that contributory negligence does not exist as a matter of law; and will then show that even if it did exist, it was noneffective by reason of the intervention of the knowledge of Young of the danger and his failure to use due care to prevent the collision.

Contributory Negligence.

"Art. 801 (K), Vernon's Ann.P.C., reads as follows:

"`The person in charge of any vehicle upon any public highway before turning, stopping or changing the course of such vehicle shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course.'

"Art. 801 (G) of said Penal Code, reads as follows:

"`All vehicles approaching an intersection of the public highway with the intention of turning thereat shall, in turning to the right, keep to the right of the center of such intersection, and in turning to the left, shall run beyond the center of such intersection, passing to the right before turning such vehicle to the left.'

"Defendant urges that both of those Articles 801 (G) and 801 (K) were violated by Mrs. Herren, and that thereby she is guilty of negligence per se, and that such negligence was the proximate cause of the collision. Defendant's positions...