Schuhmacher Co. v. Bahn, 8023.

• Decision Date: 19 December 1934
• Docket Number: No. 8023.,8023.
• Parties: SCHUHMACHER CO. v. BAHN.
• Court: Texas Court of Appeals

78 S.W.2d 205

SCHUHMACHER CO. v. BAHN.

No. 8023.

Court of Civil Appeals of Texas. Austin.

December 19, 1934.

Rehearing Denied January 16, 1935.

Appeal from District Court, Travis County; C. A. Wheeler, Judge.

Suit by G. A. Bahn against the Schuhmacher Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

White, Taylor & Gardner, of Austin, and Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Polk Shelton and Henry H. Brooks, both of Austin, for appellee.

BLAIR, Justice.

Appellee, G. A. Bahn, sued appellant, the Schuhmacher Company, for damages resulting from the collision of its truck with his automobile, at the intersection of Seventh and Comal streets, in Austin. Appellee was driving his automobile in a westerly direction on Seventh street, and the agent of appellant was driving its truck in a northerly direction on Comal street when the truck ran into the automobile, striking "the middle of the car" on the left side. Appellee alleged and the jury found that the truck driver was guilty of negligence which proximately caused the collision and damages, as follows: (a) In driving the truck in excess of 20 miles per hour within the corporate limits of the city of Austin; (b) in failing to keep a proper lookout on approaching the street intersection; (c) in failing to yield the right of way to appellee on approaching the street intersection from the left, as required by statute; (d) in operating the truck partly on the left-hand side of Comal street as it approached the street intersection and at the time of the collision.

Appellant plead the contributory negligence of appellee as the proximate cause of the collision, alleging that he was driving his automobile in excess of 20 miles per hour within the corporate limits of the city of Austin, and that he failed to keep a proper lookout, failed to sound the horn, and failed to apply the brakes on approaching the street intersection. On these issues the jury found as follows: (a) That appellee was not driving his automobile in excess of 20 miles per hour; (b) that appellee failed to keep a proper lookout on approaching the street intersection, that such failure was negligence, but that such negligence neither proximately caused nor contributed to cause the collision; (c) that appellee failed to sound the horn on approaching the street intersection, but that such failure was not negligence and neither proximately caused nor contributed to cause the collision; (d) that appellee did not apply the brakes on approaching the street intersection, but that such failure was not negligence, and neither proximately caused nor contributed to cause the collision.

Pursuant to the findings of the jury, judgment was rendered in favor of appellee for $4,548.17; hence this appeal.

On approaching the street intersection and at the time of the collision appellant's truck was being driven at an estimated speed of from 35 to 40 miles per hour. It ran head-on into the left side of the automobile, striking "the middle of car," after a portion of the car had crossed the center line of Comal street in the intersection. The truck was being operated at the time with its left wheels on the left-hand side or beyond the center of Comal street on which it approached and attempted to cross the street intersection. On approaching the street intersection and at the time of the collision, appellee was not operating his automobile in excess of 20 miles per hour. At the time the witnesses first saw the approaching vehicles, the automobile was about 20 feet and the truck was about 40 feet from the street intersection; the automobile approaching from the right and the truck from the left. The car reached the street intersection first and proceeded until a portion of it was beyond the center line of the intersection, where the collision occurred. Appellee testified: That on approaching the street intersection he looked ahead and to the right for approaching traffic, saw his way clear, and proceeded straight ahead; that he did not look to the left, because he thought he had the right of way over traffic approaching from the left; that he did not see the approaching truck and never knew what struck him, being rendered unconscious by injury received in the collision. Two disinterested witnesses who were near the street intersection and saw the collision gave the evidence as to the position and speed of the vehicles. Appellant offered no testimony as to how the collision occurred.

It is not nor could it be contended that the evidence does not fully support the findings of the jury that the truck driver was guilty of the various acts of negligence charged, and found to be the proximate cause of the collision and resulting damages. However, appellant contends that the evidence showed appellee to be guilty of contributory negligence which proximately caused the collision as a matter of law, and which should bar any recovery. That is, by several propositions appellant contends in substance that since appellee admitted that he did not look to the left on approaching the street intersection, and did not slow down, or sound the horn, or apply the brakes, and admitted that if he had done so the collision would have been avoided; and since the jury found that appellee was negligent in failing to keep a proper lookout on approaching the street intersection, the further finding of the jury that such negligence neither proximately caused nor contributed to cause the collision should be set aside as having no support in the evidence as a matter of law.

Appellee did not testify that if he had looked to the left and seen the truck approaching the street intersection at the speed and in the manner testified to by the witnesses he would or could have stopped his automobile in time to have avoided the collision. He made some such answer to hypothetical questions not involving the circumstances under which the witness testified the collision occurred. Appellant's propositions also erroneously assume that, because the jury found appellee guilty of negligence in failing to look to the left on approaching the street intersection, such negligence was the proximate cause of the collision as a matter of law, notwithstanding the fully supported findings of the jury that appellant's truck...