Toney v. Herman Hale Lumber Co., 2032.

• Decision Date: 27 February 1931
• Docket Number: No. 2032.,2032.
• Citation: 36 S.W.2d 234
• Parties: TONEY v. HERMAN HALE LUMBER CO.
• Court: Texas Court of Appeals

36 S.W.2d 234

TONEY v. HERMAN HALE LUMBER CO.

No. 2032.

Court of Civil Appeals of Texas. Beaumont.

February 27, 1931.

Rehearing Denied March 4, 1931.

Appeal from District Court, Harris County; Ben. F. Wilson, Judge.

Suit by E. P. Toney against the Herman Hale Lumber Company. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Fouts, Amerman, Patterson & Moore, of Houston, for appellant.

King, Wood & Morrow, of Houston, for appellee.

WALKER, J.

We take the following statement of the nature and result of this suit from appellee's brief:

"This was a suit by appellant against appellee, appellant alleging among other things, that he was injured through the negligence of appellee when an automobile driven by L. M. Belser, Jr., in which appellant was riding, ran, after dark, into the rear end of a truck trailer which had been left parked on the right hand side of the road leading in a southerly direction toward Houston so as to obstruct the portion of the highway used by automobiles proceeding in the direction in which appellant was proceeding. Appellant alleged that the truck trailer was left unlighted and that its color blended with the color of the highway and `that at the time it was dark and the automobile in which plaintiff was riding had its headlights burning, and plaintiff was meeting other automobiles with headlights burning.' Appellee answered by pleading, among other things, that appellant's injury was caused solely by the negligence of the driver of the automobile in which appellant was riding in that, among other things:

"(1) That the driver of the car in which plaintiff was riding was operating the automobile at a speed in excess of thirty-five miles per hour;

"(2) That such driver was operating said automobile at a high, excessive and unlawful rate of speed;

"(3) That said driver was passing and attempting to pass another motor vehicle then and there on the public highway at an unlawful, high, excessive and dangerous rate of speed;

"(4) `(h) That said driver, at the time and on the occasion in question, continued to drive said automobile at an excessive, fast and dangerous rate of speed while his vision of the road ahead of him was obscured and impaired by the headlights of another motor vehicle approaching the plaintiff from the opposite direction in which plaintiff's said driver was proceeding;'

"(5) `(i) That said driver, at the time and on the occasion in question drove and operated his said automobile while he was blinded and unable to see by reason of the reflection and glare of headlights from another motor vehicle approaching from the opposite direction in which he was proceeding.'

"It is also alleged that appellant and the driver of his car were on a joint enterprise, and that the foregoing specifications of the driver's negligence were imputable to appellant.

"Appellee further pleaded that appellant's injuries were proximately caused and/or contributed to by appellant's own negligence in that:

"1. `(1) That the plaintiff, at the time and on the occasion in question failed to exercise ordinary care to keep and maintain a reasonable and proper lookout for objects on the road in the course in which the automobile in which he was riding was being operated;'

"2. `(2) That the plaintiff, at the time and on the occasion in question failed to warn or direct the driver's attention to this defendant's truck and trailer in time to enable the said driver to stop the car and avoid colliding with said truck and trailer, though said plaintiff saw, or by the use of ordinary care, would have seen said truck and trailer in ample time to have caused the driver of said automobile, with proper warning, to have stopped or avoided said collision;'

"3. That appellant had been drinking, was under the influence of intoxicating liquor, and incapable of exercising ordinary care for his own safety and did not do so;

"4. That appellant was negligent in riding with Belser knowing that Belser was under the influence of intoxicating liquor and did not have full possession of his faculties and also in that appellant failed to assume control of the automobile under the circumstances and in failing to disembark;

"5. That appellant failed to keep a reasonable and proper lookout for obstructions on or near the road in the course in which said automobile was going with a view of warning the driver of said automobile of the existence of such obstructions or otherwise extricating himself from the perils incident to a possible collision therewith; `with full knowledge * * * said driver was blinded by the glare of headlights.'

"The case was tried before a jury and on special interrogatories the jury found that appellee was negligent in not lighting its truck and trailer, in not placing a guard at its truck and trailer, in leaving its truck and trailer in a position reasonably calculated to obstruct traffic;

"And answered that the driver of the car in which appellant was riding had his vision of the road ahead obstructed or impaired by lights on an approaching car at the time of and immediately preceding the collision; that certain specified acts of the driver of the car in which appellant was riding were not any of them the sole proximate cause of appellant's injuries; that the driver of the car was not negligent in certain respects.

"There were four special issues and answers thereto supporting the judgment in favor of appellee, to-wit:

"`Special Issue No. 32

"`Did E. P. Toney, plaintiff, after it was ascertained by him that L. M. Belser, the driver of the automobile in which he was riding, was having difficulty in seeing ahead of him, and after ascertaining that Belser's vision was obscured and impaired, fail to exercise ordinary care for his own safety in reference to keeping a reasonable lookout for the existence of objects on or near the highway?

"`Answer "Yes" or "No" as you find the fact to be.'

"`Special Issue No. 33

"`If you have answered the preceding issue that he did fail to exercise ordinary care, then answer the following special issue:

"`Was such failure on his part a proximate cause of his injuries?

"`Answer "Yes" or "No" as you find the fact to be.'

"The jury answered both the foregoing issues `Yes.'

"`Special Issue No. 39

"`Did the plaintiff, E. P. Toney, at the time and on the occasion in question and under all the circumstances fail to exercise ordinary care for his own safety with reference to keeping a reasonable lookout for the existence of objects on or near the highway?

"`Answer "Yes" or "No" as you may find the fact to be.'

"`If you have answered the preceding issue in the affirmative, then answer

"`Special Issue No. 40

"`Was such failure to so keep a reasonable lookout for his own safety a proximate cause of plaintiff's injuries, if any?

"`Answer "Yes" or "No" as you may find the fact to be.'

"The jury answered both the foregoing issues `Yes.'

"On the verdict the court rendered judgment in favor of defendant (appellee)."

Appellant presents the following propositions of error:

First. Appellant complains of the testimony offered by appellee detailing the speed at which appellant and his companion were driving their car at a place twenty-five miles distant from the place of accident. This testimony was objected to upon the ground that it was remote, irrelevant, immaterial, and highly prejudicial. No reversible error was committed in receiving this testimony. It had no probative force and could not have been considered by the jury in their answers to the issues of contributory negligence found against appellant. Other questions on this issue were submitted to the jury, such as those asking whether or not appellant's driver was intoxicated and whether or not their car was being driven at the time of the accident at a rate of speed in excess of thirty-five miles per hour. The testimony complained of might have been considered by the jury in answering these issues, but these issues were answered in appellant's favor. In fact, all questions on the issue of contributory negligence submitted to the jury were found in appellant's favor, except the four questions given above in the statement of the case. St. Louis, B. & M. Railway Co. v. Cole (Tex. Civ. App.) 4 S.W.(2d) 1019, 1022, directly supports our conclusion that the introduction of this testimony was not reversible error. In that case the court said: "It is a sound proposition of law that where there are several grounds of negligence found by a jury, any one of which would entitle the plaintiff to a judgment, the verdict should be sustained, notwithstanding there may have been committed errors with reference to other grounds of negligence proven. The jury found that there was no flagman stationed at the crossing with reference to trains approaching from the south side, which was a dangerous crossing, which failure under the circumstances constituted negligence."

Second. Appellant's second proposition is as follows: "It is error for a court to submit circumstances to the jury, only ultimate issues of fact being properly submitted, and in asking Special Issue No. 8, if the driver's vision was obscured at the time of the accident, was a mere...