Sonnier v. Ramsey

• Citation: 424 S.W.2d 684
• Decision Date: 08 February 1968
• Docket Number: No. 15214,15214
• Parties: Dale L. SONNIER, Appellant, v. Ray RAMSEY, Individually and d/b/a Ramsey Truck Lines, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 684

424 S.W.2d 684

Dale L. SONNIER, Appellant, v. Ray RAMSEY, Individually and d/b/a Ramsey Truck Lines, Appellee.

No. 15214.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

Feb. 8, 1968.

Rehearing Denied March 7, 1968.

Nipper & Knox, James E. Knox, Houston, for appellant.

Alice Giessel, Houston, Talbert, Giessel, Barnett & Stone, Houston, of counsel, for appellee.

PEDEN, Justice.

Plaintiff was a 'side-rider' or passenger in an ambulance that ran into the side of a large truck in an intersection as the truck was going east on Market Street on a green traffic light. The ambulance had entered the intersection going south the Federal Road on a red traffic light, and each vehicle had been proceeding straight ahead. The trial judge ruled that the ambulance was on an authorized emergency trip at the time.

A take-nothing judgment was entered on the jury verdict which included findings that the driver of defendant-appellee's truck did not fail to keep a proper lookout and did not fail to yield the right of way; that the ambulance driver was negligent in several ways each of which was a proximate cause of the collision; that plaintiff-appellant and the ambulance driver were engaged in a joint venture and that the monetary value of appellant's damages was zero.

Appellant's first point of error complains of the trial judge's refusal to submit his requested special issue 'A' asking whether the truck driver's failure to look to the left prior to entering the intersection was a proximate cause of the collision.

We will consider his first point together with his second point, that the court erred in submitting Special Issue No. 1, and his third point, that there is no evidence to support the jury's answer to Issue No. 1. Appellant's first three points are based on his contention that the evidence conclusively shows as a matter of law that the truck driver failed to discharge his duty to keep a proper lookout. In passing on this point we consider the evidence in the light most favorable to the finding of the jury in its answer to the lookout issue which was submitted. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

Special Issue No. 1 submitted in the trial court asked whether at the time and on the occasion in question Mr. Bentle, the truck driver, failed to keep a proper lookout, and the second issue was a predicated one, asking whether such failure, if any, was a proximate cause of the collision.

The truck driver, Mr. Bentle, testified that he did not look to his right or left down Federal Road before entering the intersection because he was watching his light and the traffic ahead, and also that both lanes of traffic on Federal Road were stopped. (His meaning is not clear; Federal Road carried four lanes of traffic.) He testified he did not look to his left until he heard the siren; that by then the ambulance was about 20 to 30 feet away from him and that both vehicles were already in the intersection. Further, that the streets were still wet from an earlier rain; that he was heading east on Market Street (also a four-lane street in Houston); that he had been driving in his right-hand lane on Market Street until he approached its intersection with Federal Road, when he started moving his truck into the left one of his two lanes. He was slowing down for a red light when he saw that the traffic signal controlling traffic moving straight ahead on Market Street had turned green. This occurred when he was about 50 or 60 feet from the intersection. There is evidence that his truck was noisy. He said the window on his side of the truck was down, but the jury was entitled to believe his testimony that he heard no siren until it was too late to avoid the collision. There were no physical obstructions to visibility to his left as he approached and entered the intersection, and his eyes were about seven feet above the street as he sat in the cab of his truck. The accident happened at about 2:30 p.m.; there was no evidence of fog, smoke or rain and the ambulance had several (he said 'about forty') red lights burning when the truck driver first saw it.

The law seems to be settled in Texas that a driver who enters an intersection with the protection of a traffic signal or a stop sign is not bound to anticipate that other drivers who are required to stop will engage in negligent or unlawful acts, but that he cannot close his eyes and proceed blindly and in disregard of dangers which might reasonably be anticipated to exist. DeWinne v. Alln, 154 Tex. 316, 277 S.W.2d 95, is often cited for this principle. In Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (like DeWinne, a stop sign case), the DeWinne case is cited as authority for the rule: 'Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated.'

Appellee has cited one case, Duncan v. Durham, Tex.Civ.App., 356 S .W.2d 377, n.w.h., in which it was held as a matter of law that a truck driver who entered an intersection on a green light but had apparently not looked down the cross street, had not failed to keep a proper lookout. The holding seems to be founded on the truck driver's explanation that he was watching a woman and child caught in the intersection by a red light. No such excuse or explanation was offered in the instant case. No pedestrians were mentioned and Mr. Bentle said his truck and the ambulance were the only two vehicles at or near the intersection which were moving.

Many Texas cases have held that ordinarily it is for the jury to decide under the circumstances of the case whether the driver kept such a lookout as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances. Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, writ ref.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, writ ref., n.r.e .; Watts v. Dallas Railway & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref., n.r.e.; Edson v. Perry-Foley Funeral Home, Tex.Civ.App., 132 S.W.2d 282, err. dism., judgm. cor.; Tidy Didy Wash, Inc. v. Barnett, Tex.Civ.App., 246 S.W.2d 303, err. ref., n.r.e.; Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, n.w.h.; Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

We believe that the inferences and conclusions which might properly be drawn by a jury from Mr. Bentle's assertion that 'both lanes' on the intersecting street were stopped raise a fact issue as to his lookout; the jury could have taken this to be a reference to both the lanes on Federal Road which were on his left.

We overrule appellant's first point of error, because we hold that there was sufficient evidence to require the trial court to submit to the jury the question of whether the truck driver failed to keep a proper lookout. For the same reasons, we overrule appellant's second point, that the trial court erred in submitting Special Issue No. 1, and his third point that there was no evidence to support the jury's answer to that issue.

After examining all the evidence, we sustain appellant's fourth point, which asserts that the jury's answer to Special Issue No. 1 is so against the great weight and preponderance of the evidence as to be wrong. The facts in the instant case are unusual in that the truck driver clearly and repeatedly admitted that he looked neither to his right nor his left before entering the intersection.

In addition to the evidence as stated above, the record shows that Mr. Bentle said he was going approximately 25 miles per hour when he entered the intersection; that he did not apply his brakes before the collision; that there was nothing to obstruct his vision and that he had a clear view.

The police officer who made an investigation at the scene of the accident testified that he concluded that the point of impact was 23 feet into the intersection on Market Street and that the ambulance had gone 25 feet into the intersection on Federal Road. He said that Market is 41 feet wide and Federal is 69 feet wide. There is an esplanade in the center of Federal Road. Thus it seems likely that the two lanes for southbound traffic on Federal Road did not contain stopped vehicles because the point of impact indicates that the ambulance was probably in the southbound lane nearest the esplanade as it approached and entered the intersection.

There was testimony that four to six red warning lights on the front of the ambulance had been burning for four blocks when the intersection was reached and that two sirens had been in operation for two blocks. The owner of a filling station at the southwest corner of the intersection said he heard the siren and then got up to look; he then saw the ambulance as it approached from about 600 feet away. Its red lights were burning, and as it approached it was moving at about 30 miles per hour. He also testified that there was another filling station on the northwest corner of the intersection and that as the truck approached to about 100 feet from the intersection one...