Rozner v. Harrell Drilling Co., 12587

• Citation: 261 S.W.2d 190
• Decision Date: 25 June 1953
• Docket Number: No. 12587,12587
• Parties: ROZNER v. HARRELL DRILLING CO.
• Court: Texas Court of Appeals

Page 190

261 S.W.2d 190

ROZNER v. HARRELL DRILLING CO.

No. 12587.

Court of Civil Appeals of Texas, Galveston.

June 25, 1953.

Rehearing Denied Oct. 1, 1953.

Frank G. Harmon and Jean Dalby, Houston, Baker, Botts, Andrews & Parish, Houston, of counsel, for appellant.

Warren P. Cunningham, Jr., Houston, for appellee.

CODY, Justice.

This was an action by appellee for damages to his trailer caused by a collision with appellant's truck. The trial was to the court without a jury, and from a judgment for appellee against appellant in the sum of $1,350, interest and costs, this appeal is prosecuted. Hereafter appellee and appellant will be referred to respectively as plaintiff and defendant.

There is not much dispute about the facts. On the afternoon of December 6, 1950, defendant noticed the brakes of his truck were out of order. At that time he had reached the edge of the City limits of Houston, traveling towards Houston on the Houston-Hempstead highway. The shoulder of the highway at this point is level and defendant parked his truck on the shoulder parallel with and close to the cement slab part of the highway and turned off his motor and set or pulled on his emergency brake and then pushed against his parked truck from behind and concluded that the brake was effectively set. Then for some 20 or 25 minutes defendant sought to get some passing motorist to pick him up and drive him down to a garage to get a mechanic to fix his brakes. During the time defendant was trying to pick up a ride he did not observe his truck move. At the time a strong, cold norther was blowing, and defendant's truck contained a full load of chickens, coops, eggs and crates, the load being placed on the truck so that it came up even with the top of the cab. The loaded part of the truck was covered with a large tarpaulin and that rear window of the cab was thereby concealed from the view or any driver approaching from the rear.

While defendant's truck was thus unattended, the employee who was driving plaintiff's truck, which had a house trailer attached, approached on the highway headed in the same direction in which defendant's truck was headed, which was southerly. The cement slab portion of the highway, at the point in question, is 20 feet wide and is constructed in the usual manner so that the center is its highest point with a slight slope toward the ditches on each side so that water will drain off. The day was bright and sunny and the highway is practically straight for a long distance at the point in question and at all material times there was no other vehicle on the highway in the vicinity. Plaintiff's employee first observed defendant's truck while he was some 400 or 500 yards distant therefrom and it seemed to said employee that the truck was stationary and almost entirely on the shoulder of the highway. When plaintiff's driver was some 300 yards to the rear of defendant's truck he observed it roll onto the highway. Plaintiff was driving his vehicle (consisting of truck and house trailer) at about 40 miles per hour at all material times and at no time before the collision slackened such speed.

Defendant's truck never moved faster than from 3 to 5 miles an hour. As stated, the rear window of defendant's truck was concealed by the load and tarpaulin and plaintiff's driver assumed that someone was driving the truck. The truck was moving across the highway at a very sloping angle at the moment of collision and plaintiff's driver continued to sound his horn until plaintiff's truck had drawn up even with defendant's truck when the driver saw that no one was driving defendant's truck. There was no traffic which prevented plaintiff's driver from driving farther to his left but he pulled as far to the left as he could without going off of the cement slab, seeking to avoid colliding with defendant's truck. The left rear bumper of defendant's truck collided with the rear side of the house trailer. The portion of the trailer which collided with defendant's truck was at the moment of the collision right of the center of the highway while no part of defendant's truck was left of the center thereof. After the collision defendant's truck continued to roll on across the highway and stopped in the ditch on the left or east side of the highway. Plaintiff's employee had ample time to stop his vehicle, counting from the time he first noticed defendant's truck, but as noted he was unaware that defendant's truck was not under the control of a driver.

The foregoing statement is taken from the findings of fact filed by the court at defendant's request. We quote verbatim the following findings:

'(3) Defendant failed effectively to set the brakes on his truck, failed to engage the gears on said truck, and failed to take any other precaution against the movement of said truck before leaving it unattended.

'(6) Defendant failed to exercise ordinary care in leaving his truck unattended without first taking adequate precautionary measures against its movement and was thereby negligent.' (7) Same was the proximate cause of the collision.

'(25) Plaintiff's employee, Leroy B. Schultz, at all times material to this cause, was operating plaintiff's said pick-up truck with house trailer attached in a prudent and careful manner.'

The court further found that the collision did not result from an act of God, or from an unavoidable accident.

The only conclusion of law made by the court, which we consider need be considered here reads: '(1) While as previously found, defendant turned off the motor of his truck, defendant was negligent, as a matter of law, in permitting his motor vehicle to stand unattended without * * * effectively setting the brakes thereon in violation of Sec. 97 of the Uniform Traffic Code, same being art. 6701d of the Revised Civil Statutes of Texas.'

On appeal, defendant has waived his fourth point, and insists only on the first three points of error assigned in his brief, which are to the effect (1) under the facts found by the court, the plaintiff was guilty of contributory negligence, as a matter of law, which was a proximate cause, (2) the trial court erred in finding that plainti...