Skelly v. King

• Decision Date: 30 June 1969
• Docket Number: No. 7940,7940
• Citation: 443 S.W.2d 953
• Parties: J. S. SKELLY, dba, J. S. Skelly Fuel Co., Appellant, v. George KING, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 953

443 S.W.2d 953

J. S. SKELLY, dba, J. S. Skelly Fuel Co., Appellant, v. George KING, Appellee.

No. 7940.

Court of Civil Appeals of Texas.

Amarillo.

June 30, 1969.

Rehearing Denied July 28, 1969.

Underwood, Wilson, Sutton, Heare & Berry and R. A. Wilson, Amarillo, for appellant.

Gordon, Gordon & Buzzard and Ross N. Buzzard, Pampa, for appellee.

JOY, Justice.

This is a suit for personal injuries suffered in a truck-automobile collision. From judgment for plaintiff King, defendant Skelly has appealed.

On June 21, 1966, the plaintiff driving his automobile turned west on the Borger-Pampa Highway off of Price Road and approximately 200 to 300 feet from the intersection after turning, plaintiff's automobile was in collision with the bobtail butane truck owned by defendant and driven by his employee Bowerman. The collision occurred across the center strip in plaintiff's traffic lane or over on the shoulder of the road with the left rear of the butane truck striking the right front of plaintiff's automobile. Apparently the truck then swerved back to the right across the highway striking a semitrailer truck which was either travelling slowly or parked on the shoulder of the highway. Defendant's truck then overturned on its left side approximately in the center of the main travelled portion of the highway. Plaintiff suffered injuries to the upper portion of his body and was hospitalized some eight or nine days immediately thereafter. The case was tried to a jury on special issues and based upon the answers thereto, the court entered judgment for plaintiff for $55,000.00 and defendant has perfected this appeal.

Defendant's first three points of error are based upon the trial court's action in refusing defendant's trial amendment regarding his emergency theory, requested issues and definition pertaining thereto . Defendant's driver's testimony indicated that the semitrailer truck, in front of him and travelling in the same direction, was off of the main travelled portion of the highway on the paved shoulder as he was proceeding east towards his destination. As he approached the semitrailer defendant's driver testified that both rear turn signal lights were on. As he neared the semitrailer the driver testified that the driver of the semitrailer switched to the left turn signal only, causing him to believe that the semitrailer was preparing to start forward and left upon the main travelled portion of the highway. Defendant's driver then testified that he turned his truck to the left applying his brakes and skidded across the center line of the highway, saw plaintiff then for the forst time and turned back to his right attempting to avoid plaintiff's automobile. The driver further testified that his truck went into another skid, striking plaintiff's automobile and proceeding across and striking the semitrailer. The driver testified that his butane truck ended up overturned on its left side in approximately the center of the highway. It is defendant's position that his driver was faced with a sudden emergency and after all the evidence was presented and both parties had closed prior to the charge being read by the jury, the defendant offered a trial amendment alleging an emergency. Upon objection by plaintiff the court refused the trial amendment, as well as defendant's requested issue on emergency and definition of negligence including the emergency limitation therein.

The doctrine of sudden emergency in this state has been recognized by our courts as being available as a defense to both contributory negligence of plaintiff and primary negligence of defendant. For one to be afforded the sudden emergency theory of relief of negligent action, the condition or circumstance relied upon must arise suddenly and unexpectedly, must call for action leaving no time for deliberation, and must not be brought about or proximately caused by the negligence of the party seeking to avail himself of the doctrine. Dallas Ry. & Terminal Co. v. Young, 155 S.W.2d 441 (Tex.Civ.App. refused); Goolsbee v. Texas & N.O.R. Co., 150 Tex. 528, 243 S.W.2d 386. The defendant's driver was 71 years of age and by his testimony had driven this particular butane truck some 250,000 miles over a period of time. There is nothing in the testimony to indicate there was any obstruction to the view of the driver. Although there was evidence that there had been light rain, there is no evidence that this caused any obstruction to or reduction in visibility. The highway was straight with a slight downgrade running from west to east in the direction the defendant's driver was proceeding this date. The main travelled portion of the highway was approximately 20 feet wide, with eight or nine feet of paved shoulder on each side. The testimony and picture exhibits further indicate that the semitrailer was either stopped or proceeding very slowly on the paved shoulder off of the main travelled portion of the highway. The emergency as contended by defendant was created solely by the semitrailer's driver having switched his turn signal from an indication of park to an indication of turning to the left upon the main travelled portion of the highway. The evidence indicates, however, that the semitrailer did not turn but remained upon the paved shoulder of the highway. There was no evidence that the semitrailer turned to the left, therefore, the inference is that the defendant's driver could have proceeded straight ahead without colliding with either vehicle. The testimony indicates, along with the picture exhibits, that the plaintiff's automobile when struck by the defendant's truck was off of the main travelled portion of the highway upon the shoulder. The defendant's driver testified that he did not see plaintiff's vehicle until 'there was a car looking me right in the face' and 'it was awful close in my estimation'. No reason or justification was given for the truck driver's failure to see the plaintiff's vehicle. The jury found improper lookout against the defendant's driver and we think properly so. The mere necessity for quick action does not constitute an emergency within the rule where the dangerous situation is one that could have been reasonably foreseen or anticipated and for which the party charged with negligence should have been able to meet. It is common knowledge that vehicles are apt to stop along beside the highway and a fortiori they will start. We think the defendant's driver could reasonably anticipate the condition or circumstance in this case, and the action of the trial court in refusing the trial amendment, requested issues and definition was proper.

Defendant's fourth point of error is in reference to the testimony of the investigating officer that in his opinion the defendant's butane truck did not skid to the left over the center of the main travelled portion of the highway, but was driven across by defendant's driver. Defendant points out that there were no physical facts, such as skid marks, upon which the officer could base his opinion; that the jury was as well qualified as the witness to form its own opinion from the evidence introduced. The officer was permitted to make two drawings reflecting the direction that a vehicle will skid and the drawings were introduced into evidence as Plaintiff's Exhibit No. 1 and 2 without objection by defendant. Exhibit No. 1 purported to show plaintiff's automobile on its side of the highway (right side)...