Tidy Didy Wash v. Barnett

• Decision Date: 31 January 1952
• Docket Number: No. 12359,12359
• Parties: TIDY DIDY WASH, Inc. et al. v. BARNETT et al.
• Court: Texas Court of Appeals

Page 303

246 S.W.2d 303

TIDY DIDY WASH, Inc. et al. v. BARNETT et al.

No. 12359.

Court of Civil Appeals of Texas, Galveston.

Jan. 31, 1952.

Rehearing Denied Feb. 21, 1952.

F. Warren Hicks, Houston, for appellants.

Thomas B. Weatherly, Houston, Vinson, Elkins & Weems, Houston, of counsel, for appellees.

CODY, Justice.

This action was brought by appellee Barnett against appellants Tidy Didy Wash, Inc., and John A. Cronin, to recover damages for personal injuries, alleged to have resulted from a collision between the truck which appellee was driving, and a Packard automobile belonging to appellant Tidy Didy Wash, Inc., which was then being driven by appellant Cronin in the course of his employment for said corporation, which collision occurred in Houston, at the intersection of Pierce Avenue and Main Street. Appellee alleged that the collision was proximately caused by the negligence of appellant Cronin in certain particulars. Appellee sought personal damages in the sum of $12,500.

Since no question is raised on appeal with respect to the pleadings, we deem it unnecessary to refer further to them except to say that in addition to filing an answer, appellants also filed a cross-action against appellee, and against Brown and Root, whose employee appellee was.

It was undisputed: That the collision occurred in broad daylight. That the movement of traffic at the intersection was controlled by signal lights. That traffic lawfully moves both directions on Main Street; but Pierce is a one-way street on which traffic could lawfully move only toward the east. That at the time the accident occurred, appellee was driving south on Main, and appellant Cronin was driving east on Pierce.

The court overruled appellants' motions for directed verdicts which were seasonably made in the main action, and submitted the case to the jury upon special issues, which, as answered by the jury, found, among other things:

(1) That appellant Cronin drove his Packard into the intersection of Pierce and Main when the traffic signal was red in the direction he was traveling. (2) That this was a proximate cause.

(3) That said appellant was driving at a greater rate of speed than an ordinarily prudent person would have under the circumstances. (4) That this was a proximate cause.

(5) That said appellant failed to keep a proper lookout. (6) That this was a proximate cause.

We deem it proper to give special issue No. 11 verbatim: 'Do you find from a preponderance of the evidence that at the time of and immediately before the collision in question the Plaintiff, L. P. Barnett, failed to keep such lookout for automobiles traveling in an easterly direction on Pierce Avenue at its intersection with Main Street as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances?'

To which the jury answered: 'No.'

Appellants seasonably filed a motion for judgment notwithstanding the verdict which was overruled. The jury found in answer to the damages issues that appellee had sustained damages amounting to $12,500. The jury further found that in the future he would propably expend $750 in treatment. Appellee filed a remittitur to reduce his damages to the sum of $12,500, which was the sum sued for. And the court rendered judgment for appellee in the sum of $12,500, and that appellants recover nothing.

Appellants have predicated their appeal upon seven formal points, the first five of which they have grouped for presentation. As so grouped, said five points present: That appellants were entitled to judgment as a matter of law upon the admissions of Barnett, and upon the undisputed evidence; that there was no evidence to support the jury's answer to special issue No. 11; that the evidence was insufficient to support such answer; that such answer was against the great preponderance of the evidence.

From the pleadings and the evidence, it is clear that a hotly-contested issue below was which of the parties had the green light at the intersection? It is here appellants' chief contention that from appellee Barnett's own statements and admissions, given when he testified, it appears that he convicted himself of contributory negligence, as a matter of law, of failing to keep a proper lookout. It is well settled, of course, that if a litigant admits positive and definite facts, which, if true, would defeat his right to recover, and such admissions are not modified or explained by him, he is conclusively bound thereby. Stanolind Oil & Gas Co. v. State, 136 Tex. 5 at page 26, 145 S.W.2d 569.

The substance of Barnett's testimony, which appellants contend defeats any right on his part to recover, is: He testified that he never saw the automobile which was being driven by appellant Cronin, and which belonged to appellant Tidy Didy Wash, Inc., until after the collision. After having testified that when he approached the intersection and looked both ways, and saw nothing; and that he was over half way through the intersection before the collision occurred; and that there was no obstruction to prevent him from seeing traffic moving east on Pierce towards its intersection, the following questions were asked Barnett, who made the indicated answers:

'Q. Mr. Barnett, my question is when you approached the intersection of Pierce and Main Street there, if you had looked as you entered the intersection if you had looked to your right, how far could you have seen down Pierce Street? A. I don't think I could have seen more than three or four blocks.

'Q. Three or four blocks. A. If that far, and I could not have seen that far driving fifteen or twenty miles an hour and been able to have told whether there was a car coming in any direction or not, three or four blocks.

'Q. What I am wanting to know, Mr. Barnett, is whether you entered the intersection of Pierce and Main Street there, going at the rate of speed you say you were going if you had looked to your right how far could you have seen? A. I really don't know, sir. I have not tried looking to see how far I could see, traveling like that. I imagine I could see a couple of blocks.

'Q. At that time Pierce Street was a one-way street? A. That is right.

'Q. But when you drove up to Pierce Street you looked to your right and then to your left. A. That is force of habit. I think everybody does it.

'Q. But notwithstanding the fact that you say that when you came up to Pierce and Main Street and you say that you looked to the right on Pierce Street and you could see two blocks down Pierce Street, you did not see Mr. Cronin's automobile? A. No, sir, I didn't say that I looked two blocks, I said I looked forty or fifty feet

'A. There was no occasion for me to (look but forty or fifty feet), because I had a green light.

'Q. What was the occasion, if at all, for you to look if you had a green light? A. Don't you?

'Q. I repeat, it is up to you to answer my question. A. It is just force of habit.'

It is appellants' contention that Barnett's evidence showed as a matter of law that he was not in the exercise of due care in looking out for his safety, and that he convicted himself of contributory negligence as a matter of law. In support of their contention, appellants rely on the line of authorities which hold: that a failure on the part of a plaintiff, where he has a duty to look, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law. Whether or not such...