Tarry Warehouse & Storage Co. v. Duvall

• Decision Date: 13 April 1938
• Docket Number: No. 7155.,7155.
• Citation: 115 S.W.2d 401
• Parties: TARRY WAREHOUSE & STORAGE CO. v. DUVALL.
• Court: Texas Supreme Court

115 S.W.2d 401

TARRY WAREHOUSE & STORAGE CO. v. DUVALL.

No. 7155.

Supreme Court of Texas.

April 13, 1938.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by T. F. Duvall against the Tarry Warehouse & Storage Company for damages resulting from a collision between a trailer of defendant's truck and a trailer of plaintiff's truck. From a judgment of the Court of Civil Appeals, 94 S.W.2d 1249, affirming a judgment for the plaintiff, defendant brings error.

Reversed and remanded.

Lightfoot & Robertson and Nelson Scurlock, all of Fort Worth, for plaintiff in error.

Julien C. Hyer and A. W. Christian, both of Fort Worth, for defendant in error.

SHARP, Justice.

T. F. Duvall sued the Tarry Warehouse & Storage Company for damages resulting from a collision between a trailer of defendant's truck and a trailer of plaintiff's truck. The collision occurred at a point on state highway No. 2, outside any town or city, about twelve miles north of the city of Fort Worth. The case was submitted to the jury on special issues, and based upon the answers of the jury to such special issues the trial court entered judgment for plaintiff in the sum of $10,270.75. The Tarry Warehouse & Storage Company appealed the case to the Court of Civil Appeals at Fort Worth, and the judgment of the trial court was affirmed. 94 S.W.2d 1249. A writ of error was granted on the application of the Tarry Warehouse & Storage Company.

In order to be brief, we will refer to T. F. Duvall as Duvall, and to the Tarry Warehouse & Storage Company as the Warehouse Company.

The Warehouse Company in substance contends that the trial court erred in overruling its motion for an instructed verdict for the following reasons:

(1) Since the undisputed evidence shows that Duvall, in violation of article 827a, § 10, Vernon's Ann.P.C., parked his truck, with a trailer attached thereto, so that the left rear wheel of the trailer extended approximately 12 or 15 inches upon the pavement, and the bed of the trailer extended about 6 inches over the wheel, and the trailer was left standing in this position so that the right front corner of the trailer attached to the Warehouse Company's truck, which was being driven on the right-hand side of the pavement, collided with the left rear corner of the trailer attached to Duvall's truck, it appears that the accident and injury would not have occurred if Duvall had observed the provisions of article 827a, § 10.

(2) Since it appears that it was negligence on the part of Duvall to leave his truck standing with the trailer attached thereto extending partially upon the pavement of the highway, at a place where vehicles were passing and might collide with his vehicle, and that such negligence was a continuous act, and occurred at the very instant the collision happened, it must be held that the negligence of Duvall was at least a contributing or concurring cause, co-operating with the negligence on the part of the driver of the Warehouse Company's truck, in producing the injuries complained of by Duvall.

We quote from the opinion of the Court of Civil Appeals, 94 S.W.2d 1249, 1250, the following statement:

"The collision occurred at about 11:30 p. m. on November 15, 1932. The weather was cold and dry. Plaintiff Duvall, assisted by his helper, LeRoy Price, was traveling in a northerly direction in his truck, to which was attached a trailer. The engine of his truck began missing, due to needed repairs of the gas lines, and to make the repairs he pulled his truck to the right and off the pavement of the highway, and, according to his testimony, as far as it would go without running into a ditch on the east side of the highway. The shoulder on that side where the truck pulled off was 7 feet wide. The trailer also stopped off the pavement with the exception of the left rear wheel, which stopped a foot or a foot and a half west of the east edge of the pavement. It was about 15 feet long and 6 feet wide. The west corner of the rear end of the trailer extended some 4 or 6 inches west of the rear wheel, leaving more than 15 feet of the pavement at that point open for traffic; the width of the pavement being 18 feet. There were two lights and a reflector on the rear of plaintiff's trailer that were burning brightly immediately prior to the collision.

"Defendant's truck was also traveling north on the highway; it too was pulling a trailer and was driven by defendant's employee, Lon Pitts. The right front corner of that trailer collided with the west rear corner of plaintiff's trailer, and plaintiff, who was standing on the shoulder of the highway near the front of his trailer, was struck on the head by that trailer and knocked into a ditch on the east side of the highway."

The Court of Civil Appeals further sums up the findings of the jury in the following language: "The jury found that immediately prior to the injury defendant's truck driver, Pitts, was driving the truck at a speed of 25 miles per hour, and in so doing he was guilty of negligence, which was a proximate cause of the accident; immediately prior to the collision defendant's truck driver failed to keep a proper lookout ahead for plaintiff's truck, and in so doing was guilty of negligence, which was a proximate cause of the collision; just prior to the collision defendant's truck driver was blinded by the lights of an approaching vehicle, and, after he became so blinded, he continued to drive defendant's truck at the same rate of speed at which he was driving immediately before he became blinded, and in so doing was guilty of negligence, which was a proximate cause of the collision; just prior to the collision plaintiff parked his truck and trailer as near to the ditch on the right-hand side of the road as same could be parked, without driving it into the ditch on such right-hand side; he had a tail-light burning on his truck at the time of the collision and a reflector attached to the rear end of his truck on the left side of same."

The Warehouse Company invokes section 10 of article 827a, Vernon's Ann.P.C., as a complete defense to Duvall's claim for damages.

In article 801 of the Penal Code is found the following language: "The driver or operator of any vehicle in or upon any public highway wherever practicable shall travel upon the right hand side of such highway. * * * On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead."

Section 10, of article 827a, in part reads: "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of any incorporated town or city, when it is possible to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided, in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less...