Talley Transfer Co. v. Cones

• Decision Date: 13 October 1948
• Docket Number: No. 11869.,11869.
• Citation: 216 S.W.2d 604
• Parties: TALLEY TRANSFER CO. et al. v. CONES.
• Court: Texas Court of Appeals

Page 604

216 S.W.2d 604

TALLEY TRANSFER CO. et al. v. CONES.

No. 11869.

Court of Civil Appeals of Texas. San Antonio.

October 13, 1948.

Rehearing Denied November 10, 1948.

Appeal from District Court, Seventy-Third District, Bexar County; Delos Finch, Judge.

Personal injury action by Mrs. Jack Cones against Talley Transfer Company and others. From the judgment, the defendants appeal.

Affirmed.

Eskridge & Groce, of San Antonio, for appellants.

Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.

MURRAY, Justice.

This suit was instituted by Mrs. Jack Cones against Talley Transfer Company, a partnership composed of C. A. Talley and Fretwell Schock, seeking to recover damages for certain alleged personal injuries sustained by her when she was struck by a truck owned by the transfer company and operated by one of its employees. The collision occurred at the intersection of Market Street and South Main Avenue in the City of San Antonio, Texas. Mrs. Cones was a pedestrian at the time and was walking north on the east side of South Main Avenue and across Market Street when she was struck by the truck. The truck was headed in a easterly direction.

The trial was to a jury and resulted in judgment based upon the jury answers to special issues in the sum of $9,078.64, from which judgment Talley Transfer Company has prosecuted this appeal.

Appellants first point is that the court erred in refusing to submit its first requested issue to the jury, inquiring as to whether or not the failure of appellee to wait until the truck had passed in front of her before proceeding across Market Street, was negligence.

Appellant plead, among other things, that: "as she (Mrs. Cones) proceeded across said street, she did not look to observe vehicles on the street coming from her left. * * * the plaintiff, without keeping a proper lookout and without observing to her left to see if traffic was coming through said street, walked immediately in front of said truck; * * *. They (the transfer company) further say that the plaintiff was negligent in the following particulars: * * *

"(c) In failing to wait until the truck had passed in front of her before proceeding across Market Street."

Thus it is seen that appellant plead that Mrs. Cones did not see the truck approaching her from her left, and there is an absence of allegation that Mrs. Cones could have discovered the approach of the truck other than by keeping a proper lookout.

The evidence shows conclusively that Mrs. Cones never saw the truck that struck her. There were three, and only three, eye witnesses to this accident, who testified: Mrs. Cones, Panfilo Estrada, the driver of the truck, and R. T. Cole, a bystander. Mrs. Cones testified that before attempting to cross Market Street she looked to her left and saw no traffic approaching. She did see some traffic going south on Main Avenue. This was in fact South Main Avenue, but it will simplify matters to refer to this street as Main Avenue. Mrs. Cones had come from the south and was proceeding in a northerly direction along the east side of Main Avenue when she arrived at its intersection with Market Street. She was desirous of continuing her northerly course along the east side of Main Avenue. Having looked and seen no traffic coming toward her from the left she continued her course to just slightly past the center of Market Street, where she looked to her right to see if there was any traffic approaching from that direction — both Main Avenue and Market Street being two-way streets at this point. Just past the center of Market Street, she was struck by appellant's truck and injured. She never saw the truck that hit her and had no idea where it came from. Panfilo Estrada, the driver of the truck, testified that he entered Main Avenue from the west, from a street which lies between the Frost Bank and the San Fernando Cathedral. (This street is about one-half of a block north of Market Street.) He then turned to his right on Main Avenue in the direction of Market Street and was attempting to turn to the left and enter Market Street when the left front fender and light struck Mrs. Cones. He said he did not quite complete his turn into Market Street. He showed the traffic investigator where the truck struck Mrs. Cones (showed him the tire marks on the pavement), and by measurement this was three feet north of the center of Market Street, or twenty-two feet from the north curb of Market Street. He testified that he did not see Mrs. Cones until he struck her. The witness R. T. Cole testified that he was seated on a bench in a park near Market Street and saw the collision. He also testified that Mrs. Cones was struck near the center of Market Street. He said Mrs. Cones was not looking to her left or right as she was crossing the street.

"Q. Now, just go ahead and tell us what the lady did. A. She stepped off the curb, and to my knowledge she did not look either way. I don't remember seeing her look either way. And she walked out in the line of traffic and stepped in front of the truck, and just as the truck hit her the truck stopped. * * *

"Q. What part of Market Street was she in with reference to whether she was on the south side, north side or the center of the street? A. She was approximately in the center of the street."

Thus, from all the witnesses, it appears that Mrs. Cones was struck after she had passed the center of Market Street, by a truck that was making a left turn into Market Street, and at least the part of the truck which struck Mrs. Cones was on the left-hand, or its wrong side of the street, and that she never saw the truck. Appellant's pleadings are to the effect that Mrs Cones did not see the truck that struck her, as heretofore shown.

Mrs. Cones could not be negligent in simply failing to wait and let a truck pass in front of her when she had never seen the truck. She might be guilty of negligence in not keeping a proper lookout, but that is a different matter. She was not required to anticipate that a truck would be making a left turn into...