Skyline Cab Co. v. Bradley

• Decision Date: 21 May 1959
• Docket Number: No. 13427,13427
• Citation: 325 S.W.2d 176
• Parties: SKYLINE CAB COMPANY et al., Appellants, v. Mrs. Nena BRADLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 176

325 S.W.2d 176

SKYLINE CAB COMPANY et al., Appellants, v. Mrs. Nena BRADLEY et al., Appellees.

No. 13427.

Court of Civil Appeals of Texas, Houston.

May 21, 1959.

Rehearing Denied June 18, 1959.

Vinson, Elkins, Weems & Searls, Houston, Thomas B. Weatherly and Sam W. Davis, Jr., Houston, of counsel, for apellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden and Bob Shannon, Houston, for appellee, Mrs. Emma Foster.

Musick, Musick & Heath and Ted Musick, Houston, for appellee, Mrs. Nena Bradley.

WERLEIN, Justice.

Appellee, Mrs. Nena Bradley, sued Sam Auippa, d/b/a Skyline Cab Company, and Skyline's driver, John Bailey, appellants, and also Mrs. Emma Foster, to recover damages for personal injuries sustained by her when a passenger in Skyline's cab which collided with an automobile driven by Mrs. Foster in the intersection of Austin and Pease Streets in Houston. Appellee settled with mrs. Foster for $4,200 and the suit was dismissed as to her. Appellee then filed her fourth amended original petition upon which the case went to trial, omitting Mrs. Foster as a defendant. Thereafter Skyline sued Mrs. Foster as a third party defendant for damages to the cab in the sum of $464.62. Mrs. Foster filed a separate suit against Skyline for damages sustained by her in the collision, and Skyline's driver, Bailey, filed a separate suit against Mrs. Forster to recover damages for personal injuries sustained by him. By agreement the three suits were consolidated.

The jury found both Skyline's driver and Mrs. Foster negligent and neither recovered against the other. On the jury verdict the Court entered judgment for appellee, Mrs. Bradley, against appellants for $10,300, being the amount awarded her by the jury, less the amount which she had been paid by Mrs. Foster in the settlement aforesaid, and further decreed that Skyline take nothing against appellee, Mrs. Foster, on its third party action against her for damages to the cab.

Appellants, in their first Five Points of Error, contend that the Trial Court erred in failing to render judgment for them non obstante veredicto in Mrs. Bradley's suit against them and also on their third party action against Mrs. Foster. They assert that Mrs. Foster's negligence proximately caused the accident, that appellants had the right of way, and that the answers of the jury to issues on appellants' lookout and proximate cause should have been held for naught, and that the Court erred in adjudging all costs against them.

The evidence shows that in three parallel lanes on Austin Street, a one-way street, appellant's cab, the car of witness Mr. Azios, and another car, had come to a stop facing north before entering the intersection at Pease, in compliance with a red light facing them. When the light turned green, said motor vehicles started up. Mr. Azios, whose car was between the cab on his left and the other car on his right, testified that he had moved a very short distance when, seeing Mrs. Foster's car entering the intersection, he immediately stopped, as did also the car on his right. Appellant's cab, however, continued to move to a point about one car length into the intersection when it was struck by the car driven by Mrs. Foster.

The jury found: (1) negligence of appellants and appellee, Mrs. Foster, proximately caused the collision which was the basis of appellee's suit; (2) appellants failed to keep such lookout for automobiles proceeding in a westerly direction on Pease Street as would have been kept by a very cautious and prudent person in the exercise of a high degree of care under the same or similar circumstances, and that such failure was a proximate cause of the collision in question; (3) that appellants failed to keep such lookout for automobiles proceeding in a westerly direction on Pease Street as would have been kept by a person of ordinary prudence, and such failure was a proximate cause of the collision; (4) that the cab driver failed to make such timely application of his brakes at the time of and immediately before the collision in question as would have been made by very cautious and prudent person in the exercise of a high degree of care, and that such failure was a proximate cause of the accident; (5) that the cab driver failed to make such timely application of his brakes as would have been made by a person of ordinary prudence, and such failure was a proximate cause of the accident; (6) that appellee, Mrs. Foster, was negligent in running a red light on Pease Street, and such negligence was a proximate cause, but not the sole proximate cause, of the collision; (7) that appellee, Mrs. Foster, was negligent in failing to keep a proper lookout for automobiles proceeding in a northerly direction on Austin Street and such negligence was a proximate cause, but not the sole proximate cause, of the collision; and (8) that appellee, Mrs. Foster, was negligent in failing to make a timely application of her brakes, and that such negligence was a proximate cause, but not the sole poximate cause, of the collision.

Appellants do not attack the jury's findings that they filed to maintain a proper lookout and failed to make a timely application of their brakes, but argue that since the cab had the right of way, although the jury found that appellee, Mrs. Foster, had entered the intersection first, it owed no duty to apply its brakes, and that the cab driver's failure to keep a proper lookout could not have been a proximate cause of the accident because of the act of Mrs. Foster in running the red light and in failing to make any application of her brakes. They rely upon the case of McCall v. Williams, Tex.Cov.App., 311 S.W.2d 743, writ ref., n. r. e., wherein the jury found that Mrs. McCall had kept a proper lookout, but had failed to swerve to the left and to apply her brakes before the collision, and that such acts constituted negligence which proximately caused the collision. In that case it was established by evidence of a conclusive nature, not only that Mrs. McCall entered the intersection first, but that the collision occurred when she was about two-thirds through the intersection, the other car running into the right side of her car. It was further stated by the Court that the other car, as it approached the intersection, was moving very slowly and there were no circumstances to alert Mrs. McCall to the possibility that the Hughes car would not respect her right of way and hence there was no duty on the part of Mrs. McCall to veer to the left or to apply her brakes.

We think the present case and the McCall case are distinguishable in that the jury found that the driver of Skyline's cab failed to keep a proper lookout and failed to apply his brakes timely, and there is nothing to show that he would not have been alerted to the danger and have avoided the collision had he kept a proper lookout. Both Mr. Azios and the driver of the car on Mr. Azios' right did see Mrs. Foster's car enter the intersection and they applied their brakes in ample time to avoid a collision. The jury found that Mrs. Foster entered the intersection before Skyline's cab, but they also found she entered when a red light was facing her. Since both appellants and appellee, Mrs. Bradley, pleaded with reference to the traffic lights, it was unnecessary to prove that they were lawfully installed and in operation. Fontenot v. Davis, Tex.Civ.App., 296 S.W.2d 939.

We do not agree with appellants that the cab driver was relieved of the responsibility to maintain a lookout, and to make timely application of his brakes, or to take other precautions for his own safety and that of others, simply because he had the right of way.

In the case of Intges v. Dunn, 311 S.W.2d 877, 881, writ ref., n. r. e., this Court said:

'The rule is often stated that a person is not bound to anticipate negligence or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. However, it does not necessarily follow, as a matter of law, that a person who has the right of way at an intersection is under no duty to exercise such care for his own safety as a reasonably prudent person would exercise under the same or similar circumstances. Thus, every person proceeding along and across a public thoroughfare is under the duty at all times to maintain a proper lookout and a proper control of his vehicle for his own safety, and may not proceed blindly and heedlessly in disregard of dangers that might reasonably be anticipated to exist. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, writ ref.; Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, writ ref.; Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, writ ref., n. r. e.; Johnson v. East Texas Motor Freight Lines, Tex.Civ.App., 271 S.W.2d 708.'

Appellants do not assert in any point of error that the Court should have held for naught the jury's finding that the cab driver failed to apply his brakes timely or that such failure was a proximate cause of the collision. Their Points of Error are directed only to the issues on lookout and proximate cause in connection therewith. It should be noted here that while appellants were under only the duty of exercising ordinary care as to appellee, Mrs. Foster, they were required to exercise a high degree of...