Traywick v. Goodrich

• Decision Date: 30 January 1963
• Docket Number: No. A-9309,A-9309
• Citation: 364 S.W.2d 190
• Parties: E. E. TRAYWICK et al., Relators, v. The Honorable Lewis M. GOODRICH, Judge of the 31st Judicial District Court of Gray County, Texas et al., Respondents.
• Court: Texas Supreme Court

Page 190

364 S.W.2d 190

E. E. TRAYWICK et al., Relators, v. The Honorable Lewis M. GOODRICH, Judge of the 31st Judicial District Court of Gray County, Texas et al Respondents.

No. A-9309.

Supreme Court of Texas.

Jan. 30, 1963.

Gibson, Ochsner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, with above firm, for relators.

Ray & Knudtson, Amarillo, for respondents.

CULVER, Justice.

The relators, Traywick et al., seek a writ of mandamus to require The Honorable Lewis M. Goodrich, District Judge of Gray County, to enter a judgment for them upon a jury verdict. The suit arose out of a collision between relators' truck and an automobile operated by Mrs. Maxine Ethridge, the plaintiff, at the intersection of two streets in Pampa. The trial court declared a mistrial on the sole ground that findings of the jury in answering two issues were in fatal conflict.

Under Special Issue No. 9 the jury found that Mrs. Ethridge failed to maintain a proper lookout on the occasion in question and that such failure was a proximate cause of the collision.

Under Special Issue No. 13 the jury found that Mrs. Ethridge failed to ascertain or determine that the way was clear for her to enter the intersection before doing so, but that such failure was not negligence.

We are of the opinion that the two issues are not in irreconcilable conflict and therefore the judgment should be entered by the trial court in favor of the relators.

Special Issue No. 9 is all-inclusive on the question as to whether the plaintiff kept and maintained the proper observation at all times on approaching, entering into and after she had entered upon the intersection up until the time of the collision. On the other hand No. 13 only inquires as to her conduct before entering the intersection. That issue is necessarily embraced within but not coextensive with Special Issue No. 9. In fact it is clear that No. 13 should not have been given by the court. The general issue of lookout should not be fragmentized.

It is not necessary for us to speculate upon the mental processes of the jury as to why they answered that the plaintiff did fail to ascertain that the way was clear for her to enter the intersection before doing so, and then find that this failure was not negligence. The relators do suggest, however, that as she stopped at a stop sign there were three vehicles parked on her left and a house on the corner of the intersection which the jury may have thought obstructed her vision in the direction from which the relators' truck was approaching. She testified that she was not aware of the approach of the relators' pickup truck until the actual impact occurred and admitted that she never saw it for even a split second before the collision.

(1, 2) The findings can be reconciled on the basis that Mrs. Ethridge was not negligent in failing to keep a proper lookout while stopped and before attempting to enter the intersection, but that she was guilty of negligence in failing to keep a lookout thereafter. The obligation rests upon the automobile driver not only to keep a proper lookout while stopped and before starting to cross, but at all times thereafter until the crossing has been negotiated in safety. Certainly one is negligent who looks both ways while stopped before entering the intersection and then proceeds blindly ahead.

(3) Where there is no irreconcilable conflict in the jury's findings it is the ministerial duty of the Judge to enter a judgment on the verdict and the matter involves no judicial or discretionary powers. Gulf C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296.

(4) It is the duty of the trial court to reconcile apparent conflicts in the findings of the jury if reasonably possible. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830. In a somewhat similar fact situation the court held in Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134, 1947, wr. ref. n. r. e., that there was no irreconcilable conflict between a finding of plaintiff's failure to keep a proper lookout for approaching traffic and a finding that although pl...