Solana v. Hill
| Decision Date | 30 June 1961 |
| Docket Number | No. 3639,3639 |
| Citation | 348 S.W.2d 481 |
| Parties | Silvano SOLANA, Appellant, v. Gus Henderson HILL et al., Appellees. |
| Court | Texas Court of Appeals |
Butler, Williams & Stone, Robstown, for appellant.
Keys, Russell, Keys & Watson, Fischer, Wood, Burney & Nesbitt, Dudley B. Foy, Jr., Corpus Christi, for appellees.
Silvano Solana, as next friend of Rose Marie Frankie, a minor, sued Gus Henderson Hill, Alston Clifford Gendy, Leonard Floyd Weber, Earl Weber and Edward Jordan for damages caused by injuries received in a collision of automobiles driven by Earl Weber and Edward Jordan. Rose Marie was a guest in the automobile driven by Earl Weber. Hill was driving north on Highway 77, between Driscoll and Robstown. Hill had his father-in-law, Gandy, and another in the car with him. He was driving less than sixty miles per hour. Hill was followed by Leonard Weber. Earl and Leonard Weber were taking Rose Marie and others to a basketball game in Corpus Christi. Earl was driving behind his brother. Edward Jordan was going sough. As Jordan approached Hill's northbound car, Leonard Weber, who was driving behind Hill, turned left and went around Hill. Earl Weber, thinking Leonard was about to stop on the highway and fearing that he would hit him, turned to his left across the west side of the highway where he collided with Jordan, injuring Rose Marie Frankie.
Plaintiff alleged that the Weber brothers came upon Hill's automobile stopped in the east lane of said highway; that Leonard, without signaling to Earl, suddenly drove around Hill, barely avoiding a collision with Jordan, and that Earl then turned to his left and collided with Jordan in the west lane. Before the case was submitted to the jury, Earl Weber filed a motion for an instructed verdict on the ground that Rose Marie was a guest in his automobile and there was no evidence that he was guilty of gross negligence. Said motion was granted.
A jury found that (1) just before the collision Hill's car was not stopped on the highway; that (5) Hill failed to keep a proper lookout, which was (6) a proximate cause of the collision; that (7) immediately prior to the collision Hill did not rapidly decrease the speed of his automobile on the highway; that (11) Hill and Gandy were not engaged in a joint enterprise; (14) that Leonard Weber did not fail to keep a proper lookout; that (17) Leonard was not operating his automobile at an excessive rate of speed; that (19) Leonard did not pass Hill's car when his left side of the roadway 'was not free of oncoming traffic for a sufficient distance to the north to permit' passing without interfering with the safe operation of Hill's car; that (21) Leonard did not fail to properly apply his brakes; that (23) the acts of Earl Weber were not the sole cause of the collision; that (24) Jordan did not fail to keep a proper lookout; that (26) Jordan was not negligent in applying his brakes; that (28) Jordan was acting in an emergency and (29) was not guilty of negligence. The jury found that $25,000 would compensate the minor for her injuries. In other words, the court acquitted Earl Weber and the jury found that all defendants, except Hill, were not negligent.
The court granted Hill's motion to disregard the answers to issues 5 and 6, in which it had found that Hill was guilty of negligence in failing to keep a lookout to the rear and that such failure was a proximate cause of the collision, because there was no evidence raising such issues and no evidence to support such findings for the reason that under the circumstances, as a matter of law, Hill owed said minor no duty to keep a lookout for the cars travelling behind him. Judgment was rendered for all defendants. Plaintiff appealed.
Appellant says that all the defendants, except Hill, won unchallenged jury findings entitling them to the judgment rendered. There is no complaint of the instructed verdict for Earl Weber based on the theory that Rose Marie was his guest and there was no evidence that he was guilty of gross negligence. Appellant contends the court erred in (1) failing to grant a new trial as to all defendants because of jury misconduct and (2) in failing to render judgment against Hill on the findings that he was guilty of negligence in failing to keep a lookout to the rear and that this was a proximate cause of the collision. Appellant's point one is, in effect, that the court erred in overruling his motion for a new trial as to all defendants because a juror, Mr. Ball, used a slide rule to prepare an exhibit in the jury room, which he showed to the jury, and announced that his calculations proved two defendants free of fault. Appellant says jury misconduct was conclusively established and, therefore, the court erred in failing to grant a new trial as to all defendants. We have some doubt of our duty to consider point one because of its variance in some respects with the assignment on which it is based. However, we have concluded that, due to the liberality with which such rules are construed, we should treat the gist of the point as properly presented.
The case involved relative speeds, distances and time intervals in connection with the actions of Hill and Leonard Weber, whose cars were not in the collision, and Earl Weber, driver of the northbound car, and Jordan, the driver of the southbound car. As stated, the latter collided on the west side of the west lane, while Jordan was driving on the right hand side of his own lane. Appellees say that said juror, by using only the evidence introduced, attempted to reconstruct the collision in order to determine what testimony was credible; that this was his duty, and he did no more. We agree with this contention. There was evidence that a car travelling forty miles an hour moves nearly 59 feet per second and that one going 60 miles per hour moves about 88 feet per second. There was evidence that the maximum and minimum reaction times of automobile drivers are 1 1/2 and 1 1/4th seconds, respectively, and that the average is 3/4ths of a second. The evidence shows that said juror applied a slide rule to the charts introduced and to such parole testimony in order to place the cars where they were, according to the record, at the time of impact, and that he then moved them back second by second, and checked the result of his mathematical calculations with the testimony as to location, speed and other relevant matters. There was no testimony that any facts or figures were used in his calculations other than those in...
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...1967, no writ); Hill v. W. E. Brittain, Inc., 405 S .W.2d 803 (Tex.Civ.App.--Fort Worth 1966, no writ); Solana v. Hill, 348 S.W.2d 481 (Tex.Civ.App.--Eastland, writ ref'd n.r.e.); Freeman v . Harkrider, 320 S.W.2d 238 (Tex.Civ.App.--Amarillo 1959, no writ). Under the evidence, the finding o......
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