Sutherland v. Cotter, 12018
| Decision Date | 07 December 1949 |
| Docket Number | No. 12018,12018 |
| Citation | 226 S.W.2d 476 |
| Parties | SUTHERLAND v. COTTER. |
| Court | Texas Court of Appeals |
Lloyd & Lloyd, Alice, for appellant.
Perkins & Floyd, Alice, Carmel F. Davis, Alice, for appellee.
This is an appeal from an order sustaining a plea of privilege. The trespass clause of Exception 9, Article 1995 is involved.
The appellant, G. W. Sutherland, Sr., brought suit against Chester Cotter for damages resulting from Cotter's truck having collided with the rear end of Sutherland's automobile. It is undisputed that the collision occurred in Jim Wells County; that Cotter resides in Atascosa County; and that the driver of the truck at the time of the collision was acting within the scope of his employment.
Appellant contends that the evidence conclusively shows that a trespass was committed in Jim Wells County.
We agree with this contention. The only witness who actually testified was the appellant. He testified that between eight and nine o'clock of the morning of January 20, 1947, he was driving in a northerly direction on Highway 281. The pavement was wet with rain or dew. He was travelling about twenty miles an hour and started to veer off the paved section of the highway on to the shoulder when appellee's truck loaded with cattle hit his car from behind. Appellant testified that The impact 'buckled up the hind part of the car and knocked everything out of the trunk on the ground.' It rolled the car fifty feet or so until appellant stopped the car on the gravel shoulder.
The parties stipulated that a man named Rhodes, if present, would testify that he saw appellant's car and appellee's truck on the highway shortly before the collision and that the truck was following the car so closely that he thought at first the car was towing or pulling the truck.
Appellant's testimony was such as could have been easily contradicted if untrue and, insofar as the record discloses, Rhodes was wholly disinterested in the outcome of the case.
Contributory negligence, if any, on the part of appellant is not a venue fact. Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894, and the evidence will not support the theory that the collision was the result of an 'unavoidable accident,' nor a finding that appellant's actions constituted the sole proximate cause of the collision. Page v. Paterson, Tex.Civ.App., 180 S.W.2d 660. We think the undisputed evidence shows, as a matter of law, that appellee's driver was negligent in driving the car too close to appellant's car and such negligence was the proximate cause of the collision. Martin v. Cable, supra; Mueller v. Bobbitt, Tex.Civ.App., 41 S.W.2d 466; Rankin v. Nash Texas Company, Tex.Civ.App., 73 S.W.2d 680; Id., Sup.Ct., affirmed in pt., reversed in pt., 129 Tex. 396, 105 S.W.2d 195.
This collision took place before the Uniform Act Regulating Traffic on Highways became effective, Acts 1947, 50th Leg., p. 967, Ch. 421, Art. 6701d, Vernon's Ann.Civ.Stats., but, as pointed out by this Court in Caraway v. Behrendt, Tex.Civ.App., 224 S.W.2d 512.
Article 6701d, § 61(a), constitutes a reiteration in the form of a penal provision of a rule of tort liability long recognized by the courts of the State.
Said Article 6701d, § 61(a) reads as follows:
'The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.'
Cases which arise in the future involving the driving of a motor vehicle too close to a preceding one will be controlled by the 'crime or offense' provision of Exception 9 of Article 1995, but, insofar as this case is concerned, it is necessary to decide whether or not the action of appellee's driver in following appellant's car too closely constituted an affirmative act of negligence as distinguished from a mere omission.
Upon this particular point the opinion of the Waco Court in Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098, 1099, is in accordance with appellant's position here and is supported by a wealth of authorities. We quote therefrom:
Edwards v. Hawkins has been cited many times with apparent approval by other Court of...
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Walker v. Johnston
...who is not interested in the outcome of the lawsuit, nor shown to be biased or prejudiced in favor of either side. Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476.' Bartsch v. Ruby, Tex.Civ.App., 229 S.W.2d 105, Further, the branded car doctrine does not violate the rule 'that one presum......
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Erck v. Zelios, 16667
...and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.' In Sutherland v. Cotter, 226 S.W.2d 476, the San Antonio Court of Civil Appeals speaking through Justice Norvell, now a member of our Supreme Court, held that under the und......
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Knight v. Smith, 16789
...and such circumstances attending the same as to justify an inference of negligence on the part of appellant.' In Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476, no wr. hist ., where the facts were quite similar to those of the case at bar and the defendant did not see fit to contradict ......
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J. H. Robinson Truck Lines v. Raymondville Independent School Dist.
...the driving of a motor vehicle into the rear of another on a highway under ordinary conditions suggests negligence, Sutherland v. Cotter, Tex.Civ.App., 226 S.W.2d 476, quoting from Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098 and the cases there cited. The circumstances in such cases ar......