Sparkman v. Maxwell

• Decision Date: 19 February 1975
• Docket Number: No. B--4782,B--4782
• Citation: 519 S.W.2d 852
• Parties: Mrs. J. T. SPARKMAN et al., Petitioners, v. Mary Louise MAXWELL et al., Respondents.
• Court: Texas Supreme Court

Page 852

519 S.W.2d 852

Mrs. J. T. SPARKMAN et al., Petitioners, v. Mary Louise MAXWELL et al., Respondents.

No. B--4782.

Supreme Court of Texas.

Feb. 19, 1975.

Rehearing Denied March 26, 1975.

Fillmore, Lambert, Farabee & Purtle, Glynn R. Purtle, Wichita Falls, for petitioner.

H. P. Hodge, Jr., Kearby Peery, Wichita Falls, for respondent.

Charles Oldham, Wichita Falls, for intervenor.

WALKER, Justice.

On the principal questions presented by this appeal, we hold that under the evidence: (1) the defendant driver of an automobile was not guilty of negligence as a matter of law in entering an intersection and attempting to make a left turn when the traffic signal controlling her movements showed a red arrow pointing to the left; and (2) the failure of the responsible city to correct the traffic signal within a reasonable time after notice that it was creating a risk of harm to the traveling public subjected the city to liability under the provisions of the Texas Tort Claims Act, Art. 6252--19. ¹

The case arises out of an automobile collision on April 14, 1972, at the intersection of Fairway Street and Southwest Parkway in Wichita Falls. Mrs. Mary Louise Maxwell, plaintiff, was driving north on Fairway, and Mrs. J. T. Sparkman, one of the defendants, had been driving east on Southwest Parkway. Mrs. Sparkman planned to turn left at the intersection and drive north on Fairway. She entered the left-turn lane on Southwest Parkway, which was controlled by a traffic signal facing that lane. As originally constructed the traffic signal consisted of three circular lens, arranged in a vertical line, a red lens at the top, a yellow lens immediately below the red, and a green lens immediately below the yellow. About two weeks before the accident, the Traffic Engineer for the City of Wichita Falls had caused a metal template to be placed inside each lens. An opening in the shape of an arrow pointing to the left was in each template, and the signal thus showed, in sequence, green, yellow and red arrows, all pointing to the left. Below the traffic signal was a sign reading 'Left Turn to Fairway.' When Mrs. Sparkman entered the left-turn lane on Southwest Parkway, the traffic signal showed a red arrow pointing to the left. After stopping and looking at the sign to be sure she was observing the signal that controlled the left-turn lane, she drove slowly into the intersection and collided with Mrs. Maxwell's automobile, which had entered the intersection on a green light facing traffic proceeding north on Fairway.

Mrs. Maxwell and her husband, plaintiffs, instituted suit against Mrs. Sparkman and the City of Wichita Falls. An insurance carrier intervened to assert a subrogation claim for damage to the automobile driven by Mrs. Maxwell, and Mrs. Sparkman filed an action against the City for indemnity and contribution. In response to the special issues submitted, the jury: (1) found that Mrs. Sparkman's entering the intersection while a red arrow was facing her was a proximate cause of the collision but refused to find that such conduct was negligence or that Mrs. Sparkman was negligent in any other respect; (2) refused to find that the plaintiff, Mrs. Maxwell, was guilty of negligence; (3) found that the collision was proximately caused by the negligence of the Traffic Engineer in installing the red arrow and in failing to warn the public of its installation, and by the negligence of the Traffic Engineer and the City in permitting the installation to remain until April 14.

The trial court rendered judgment in Mrs. Maxwell's favor against Mrs. Sparkman and the City jointly, and in favor of the intervenor against Mrs. Sparkman, for the amount of damages found by the jury and supported by the evidence. Mrs. Sparkman and the City appealed to the Court of Civil Appeals, which affirmed the judgment against Mrs. Sparkman but reversed the judgment against the City and rendered judgment that plaintiffs and Mrs. Sparkman take nothing against the City. 511 S.W.2d 566. It is our opinion that the City but not Mrs. Sparkman is liable for the damages to which Mrs. Maxwell is entitled for her personal injuries, and judgment will be rendered accordingly.

The case has now resolved itself into a dispute between Mrs. Sparkman and the City. Mrs. Maxwell filed only a conditional application for writ of error to protect her rights against the City in the event it is determined that she is not entitled to recover from Mrs. Sparkman. Mrs. Sparkman contends at the outset that the Court of Civil Appeals erred in holding that the red arrow traffic signal was legal. The resolution of this question would require a construction of the Uniform Act Regulating Traffic on Highways, Art. 6701d, and the 1967 Texas Manual on Uniform Traffic Control Devices.

Section 29 of Art. 6701d requires the State Highway Commission to adopt a manual and specifications for a uniform system of traffic control devices consistent with the provisions of the Act. Section 31 authorizes local authorities to place and maintain traffic control devices conforming to the State Highway Department's manual and specifications. Section 33 refers to traffic signals 'exhibiting different colored lights, or colored lighted arrows.' The 1967 Texas Manual, which was being revised at the time of the accident in this case, was adopted pursuant to Section 29 of Art. 6701d. Several of its provisions were introduced by the City, and Mrs. Sparkman has now forwarded to us a copy of the entire manual with the request that we take judicial notice of all its provisions. The City objects to our taking judicial notice of the manual 'as it is not part of the statute.'

With the record in this condition, we will assume without deciding that the red arrow signal was legally installed and maintained. We choose that approach because: (1) the question of whether the signal was legal is not of controlling importance in deciding the present case; (2) the 1971 National Manual on Uniform Traffic Control Devices for Streets and Highways became effective in Texas on June 1, 1972, after the accident in this case; and (3) an appellate court is naturally reluctant to take judicial notice of matters such as municipal charters and regulations promulgated by state agencies when the trial court was not requested to do so and was not given an opportunity to examine the necessary source material. See 1 McCormick and Ray, Texas Law of Evidence, 2d ed. 1956, §§ 152, 155. This does not mean that we would refuse to take judicial notice under similar circumstances where necessary to avoid an unjust judgment.

Harold Whitnell, Traffic Engineer and Director of Traffic and Transportation for the City, ordered installation of the traffic signal while acting as agent for the City and in the scope of his authority. He ordered the installation as a test for two reasons: (a) he expected the 1971 National Manual, which expressly provided for red signals, to be adopted in Texas; ² and (b) he desired to determine whether red arrow signals or signs on signal poles should be used in the future. The signal was installed on April 6, and Mr. Whitnell originally intended to continue the test for two weeks. The signal was removed at the end of eight days and about an hour after the accident in this case. During the period of eight days, Mr. Whitnell made daily observations to determine the response of drivers to the signal. He saw two cars proceed through the red arrow. Other drivers stopped their vehicles but looked around as they did so. On the basis of his observations, it was Mr. Whitnell's impression that the drivers were seeing something they had not seen before. This was the only time to his knowledge that either a red arrow or a yellow arrow had ever been used in Texas. The witness recognized that one of the best ways to achieve safety in the movement of traffic is for the motorist 'to be apprised of the rules of the game.' The test was nevertheless conducted at a busy intersection without prior notice to the public. Two police officers employed by the City testified that they had never previously seen a red arrow traffic signal.

Mrs. Sparkman testified that the signal facing her as she approached and entered the intersection was a red arrow pointing to the north. She did not realize at the time that it was red, but she did see an arrow pointing in the direction she wished to go. She saw 'something was wrong with the light' and for that reason stopped to look at the sign. The sign indicated that she was looking at the proper signal, and she proceeded into the intersection. Since the arrow was pointing in her direction, she decided that she should go ahead. She had no thought of its being red at the time. She had always turned on the arrow, and in this instance the arrow was pointing in the direction she wished to go.

In holding that Mrs. Sparkman was negligent as a matter of law despite the jury's refusal to find that her conduct constituted negligence by the common law standard, the Court of Civil Appeals reasoned that the evidence does not raise an issue of fact as to a legally...