Samford v. Duff

• Decision Date: 25 May 1972
• Docket Number: No. 683,683
• Citation: 483 S.W.2d 517
• Parties: Ralph W. SAMFORD, Individually and as Next Friend of Danny L. Samford, Appellant, v. R. R. DUFF, Appellee.
• Court: Texas Court of Appeals

Page 517

483 S.W.2d 517

Ralph W. SAMFORD, Individually and as Next Friend of Danny L. Samford, Appellant, v. R. R. DUFF, Appellee.

No. 683.

Court of Civil Appeals of Texas,

Corpus Christi.

May 25, 1972.

Rehearing Denied July 31, 1972.

William H. Berry, Jr., Corpus Christi, for appellant.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, James W. Wray, Jr., Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a personal injury case arising out of an automobile collision at a street intersection controlled by a traffic signal light. The two vehicles involved in the collision approached the intersection from directions at right angles to each other. Mrs. Mary E. Samford, the mother of plaintiffs, was killed in the accident and Danny Samford was injured therein. Suit was instituted to recover damages for the wrongful death of plaintiffs' mother and for personal injuries sustained by Danny L. Samford.

Trial was to a jury. In answer to special issues, the jury found R. R. Duff, defendant-appellee, guilty of negligence proximately causing the accident (a) in failing to keep a proper lookout, (b) in failing to make proper application of brakes, (c) in failing to turn to the right before the occurrence in question, and (d) in entering the intersection when the traffic signal light facing him was red. The jury also found by their answer to special issue 13 that Danny L. Samford failed to keep a proper lookout, and by their answer to special issue 14, that such failure was a proximate cause of the occurrence in question.

After the return of the verdict, a take nothing judgment was entered. Plaintiffs have timely perfected an appeal to this Court. We reverse and render.

Appellants, by their first and second points of error, assert that there is no evidence to support the submission of or the jury's answers to special issues 13 and 14 and that the trial court erred in refusing to disregard the jury's answers to those issues. In passing on such points, 'we may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result,'. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957). Furthermore, we may not consider or give weight to any other jury finding. Enloe v. Barfield, 422 S.W.2d 905 (Tex.Sup.1967).

The collision in question occurred in the City of Corpus Christi at the intersection of Santa Fe and Elizabeth Streets. At that intersection, Santa Fe is a three-lane, one-way street that carries southbound traffic; Elizabeth is a two-way street that carries both eastbound and westbound traffic. The width of each street is 39 feet. The traffic at the intersection is controlled by a three-color traffic stop and go signal light, which was working properly at the time of the accident.

The collision occurred on November 6, 1967. The streets were dry. Danny Samford, a minor, was driving a Volkswagen west in the north lane of Elizabeth Street, and R. R. Duff, an adult, was driving a Chevrolet south in the center lane of Santa Fe Street when the car then being driven by Duff struck the right front fender area of the car then being driven by Danny. The point of impact was fixed at 14 feet east of a projection of the west curb line of Santa Fe and 19 feet north of a projection of the south curb line of Elizabeth. At the point of impact, the Samford car had penetrated 25 feet west into the intersection and the Duff car had penetrated 20 feet south into the intersection. Both cars were moving at 20--30 miles per hour, neither was speeding, and neither laid down any tire skid marks prior to the point of collision. The force of the impact caused Mrs. Mary E. Samford, appellants' mother and a passenger in the Volkswagen, to be thrown out of the car; she struck her head on the curb and died about 45 minutes later. Danny Samford sustained bodily injuries.

In addition to the drivers of the respective vehicles involved, there were two other eyewitnesses to the accident, Mr. Charles Gambs and Mr. William Gilkey.

Mr. Gambs testified that immediately preceding the collision he was stopped in the east lane of Santa Fe near the north curb line of that street, waiting for the red light facing southbound traffic in that street to change to green. While he was stopped, the Duff vehicle passed him on his right, entered the intersection and struck the Samford automobile. He stated that the light for southbound traffic on Santa Fe was red at the time Duff entered the intersection and was also red when he (Gambs) looked at the light immediately following the collision.

Mr. Gilkey stated that he was driving west on Elizabeth Street when he witnessed the accident. He was approaching Santa Fe when he saw the Duff vehicle strike the Samford automobile. He said that the light was green when the Samford car entered the intersection.

Officer David L. Pugh, of the Corpus Christi Police Department, talked to Danny, Gilkey, Gambs and Duff at the scene of the accident . He stated that Danny said the light was green when he entered the intersection. Gilkey told him that the light from Danny's direction could have been yellow but Gilkey did not say 'as a fact' that the light was yellow. Gambs told him that he (Gambs) had a red light when Danny entered the intersection.

Mr. Duff, the appellee, said that as he approached the intersection he passed a stopped vehicle (the Gambs' car) to his left near the north curb line of Santa Fe. He first saw the Samford car through the windshield of Gambs' car when he was about even with that car and as he was passing it. He also testified that the traffic light on Santa Fe was green when he entered the intersection .

Danny Samford said that he first observed a traffic control signal light at the intersection of Elizabeth and Santa Fe Streets when he (while proceeding west on Elizabeth Street) stopped at the stop sign on Third Street, a block away. He did not notice the color of the light at that time. After checking the traffic, he then drove on towards Santa Fe. He first observed the color of the light when he was from 10 to 60 feet east of the intersection. He said that it was green at that time and was green when he entered the intersection. He denied that he ever told anyone that the light was yellow. He further testified that he looked to his right just before he entered the intersection and saw an automobile (later determined to be the Gambs' car) that was stopped on Santa Fe, but he did not see the Duff vehicle until just before the collision and after it had entered the intersection. He was aware of the sequence of light changes at the intersection (green to yellow to red to green), and that when the light was green for Elizabeth Street traffic, the light would thereafter change from green to yellow to red for traffic on that street, and that during the process of changing, the light for Santa Fe Street traffic would change from red to green without the yellow signal. When the red light was exhibited for southbound traffic on Santa Fe, the light was then either green or yellow for traffic on Elizabeth, and vice versa.

It is well settled that although a person is not required to anticipate negligent or unlawful conduct on the part of another, he is not entitled to close his eyes to that which is plainly visible to a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955). Nevertheless, the mere fact that an automobile driver is favored at an intersection with the right of way resulting from the fact that a green light is facing him does not relieve him from all duty and responsibility and does not exonerate him from blame if there is a vehicle already in the intersection, or if there is approaching him on the intersecting street another vehicle, in view, the driver of which, either because of high speed, failure to slow down, or obvious inattention, is manifestly unable to stop. If those conditions prevail, so long as the driver who is favored by the right of way still has it within his power to stop or otherwise take evasive action, he must do so. He cannot rush out into the path of danger merely because the right of way is with him. Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex .Civ.App.--Houston 1959, writ ref'd n.r.e.); Checker Cab Co. v. Wagner, 199 S.W.2d 791 (Tex.Civ.App.--El Paso 1946, n.w.h.).

The burden is on the defendant, if he will escape liability for his own negligent conduct or acts, to both plead and prove the defenses of contributory negligence. MacDonald v. Skinner, 347 S.W.2d 950 (Tex.Civ.App.--El Paso 1961, writ dism'd); Jaynes v. Lee, 306 S.W.2d 182 (Tex.Civ.App.--Texarkana 1957, n.w.h.). There is no presumption that a person is guilty of contributory negligence simply because an accident occurred. Socony-Vacuum Oil Co. v. Lambert, 180 S.W.2d 456 (Tex.Civ.App.--Amarillo 1944, n.w.h.); Polasek v. Quinius, 438 S.W.2d 828, 838 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.). 'It is held that contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.' Jordan v. City of Lubbock, 88 S.W.2d 560 (Tex.Civ.App.--Amarillo 1935, writ dism'd); Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App.--San Antonio 1950, writ ref'd n.r.e.).

The evidence reveals that Danny Samford did not see the Duff car until after it had already entered the intersection and at a time when the collision was assured. There is no evidence as to the distance or time element that Danny Samford, from his position on Elizabeth Street, could have observed the Duff car as it approached the intersection. The physical facts with respect to the land adjacent to the east of Santa Fe Street lying to the...