Turner v. Texas Co.

• Decision Date: 04 February 1942
• Docket Number: No. 1883-7788.,1883-7788.
• Citation: 159 S.W.2d 112
• Parties: TURNER v. TEXAS CO. et al.
• Court: Texas Supreme Court

159 S.W.2d 112

TURNER v. TEXAS CO. et al.

No. 1883-7788.

Commission of Appeals of Texas, Section B.

February 4, 1942.

Rehearing Denied March 4, 1942.

COPYRIGHT MATERIAL OMITTED

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

Action by Meak Turner against the Texas Company and another for personal injuries received by plaintiff in an automobile collision. To review a judgment of the Court of Civil Appeals, 138 S.W.2d 861, reversing the District Court's judgment in favor of plaintiff, plaintiff brings error.

Judgments of the District Court and Court of Civil Appeals reversed and cause remanded to District Court.

Napier & Napier, of Wichita Falls, for plaintiff in error.

Cantey, Hanger, McMahon, McKnight & Johnson, James C. Wilson, and Carlisle Cravens, all of Fort Worth, and John Davenport, of Wichita Falls, for defendants in error.

SMEDLEY, Commissioner.

The Court of Civil Appeals reversed the trial court's judgment in favor of plaintiff in error, Meak Turner, against defendants in error, The Texas Company and J. J. Hagan, for $15,000 as damages for personal injuries suffered by plaintiff in error in an automobile collision, and rendered judgment that plaintiff in error take nothing, holding that the evidence was wholly insufficient to raise the issues of discovered peril submitted to the jury and answered favorably to plaintiff in error. 138 S.W.2d 861.

No primary negligence is alleged in plaintiff's petition, recovery being sought solely under the doctrine of discovered peril. Defendants offered no evidence and the only evidence showing how or why the collision occurred was the testimony of plaintiff, which is in substance as follows: He was employed by a bakery and drove its truck in delivering its products. Just before he was injured he made his last delivery of bread at a store situated on the north side of the paved public highway running approximately east and west between Wichita Falls and Iowa Park and at the place where the highway is intersected by Beverly Drive, a road running north and south. He stopped his truck in front of the store on the north side of the highway, off the pavement, facing toward Wichita Falls (east) and about 6 or 7 feet west of Beverly Drive. The paved part of the Wichita Falls-Iowa Park highway was 18 or 20 feet in width and it had smooth gravel shoulders about 25 feet wide on each side. After delivering bread at the store he intended to return home, and to do that he would drive south on Beverly Drive toward Wichita Falls. When he started to get in the truck he looked for traffic, first toward Wichita Falls and "did not see any car coming in that direction." He looked back west toward Iowa Park and saw a car about a mile or a mile and a quarter from where he was, but he could not tell whether it was moving or standing still. It was the only car visible in either direction. There was nothing approaching him within such distance as would interfere with his turning across the road from the east. Then he got in the truck, straightened out a cushion that he was using, pushed a bucket of gravy out of his way, pushed the starter button, angled and cut across on Beverly Drive until he was across the pavement and 10 or 12 feet off of it and on the gravel road. Then he heard a crash, felt himself being lifted in the air, and knew that someone had hit his truck and that it had turned over in the air. When he crossed the highway he went all the way across in low gear. He did not look back again up the highway after he entered the truck, believing that there was no occasion to do so because he had looked and did not see a car within a mile or a mile and a quarter of him. In his opinion it took him about a minute, from the time he looked, to cross the highway and reach the place 10 or 15 feet off the pavement where he was struck. From the point where he saw the automobile a mile or a mile and a quarter up the highway to the place where he made the turn the road was straight and level and there were no trees, shrubbery or other obstructions along the side of the road or in it, and if he had been up there a mile or a mile and a quarter away there was no obstruction of any kind that would have prevented him from seeing his truck at all times. The day was very clear.

The issues submitted to the jury and answered in the affirmative were:

"(1) Do you find from a preponderance of the evidence that the driver of the automobile observed the truck as he approached the same, and knew and realized the perilous position of said truck and its occupant, and knew and realized such facts at a time, when by the use of the means at hand, having due regard for his own safety, and the safety of his automobile, and the contents thereof, he could have avoided the collision by the exercise of ordinary care?"

"(2) Do you find from a preponderance of the evidence that the driver of the automobile failed to exercise ordinary care at the time referred to in Special Issue No. 1 to use the means at hand to avoid the collision, having due regard for his own safety, the safety of his automobile and the contents thereof?"

The other two special issues related to proximate cause and the amount of damages.

We agree with the conclusion expressed by the Court of Civil Appeals that the issues above quoted were not raised by the evidence. In our opinion the evidence tends rather to prove primary negligence on the part of the driver of the automobile, that is, negligence in failing to keep a lookout or in driving at an excessive rate of speed or both.

The three essential elements of discovered peril are thus clearly and briefly stated by Judge Spencer in Baker v. Shafter, Tex.Com.App., 231 S.W. 349, 350: "The doctrine of discovered peril involves three elements, viz: (1) The exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defendants' agents of his perilous situation in time to have averted—by the use of all the means at their command, commensurate with their own safety—injury to him; and (3) the failure thereafter to use such means." See also Northern Texas Traction Co. v. Singer, Tex.Civ.App., 34 S.W. 2d 920; Texas Electric Service Co. v. Kinkead, Tex.Civ.App., 84 S.W.2d 567.

Actual discovery of the perilous position of the plaintiff is essential to recovery. It is not enough that the one inflicting the injury should have discovered the peril of the person injured or that he was negligent in not discovering it. Associate Justice Denman, in Texas & Pacific Ry. Co. v. Breadow, 90 Tex. 26, 31, 36 S.W. 410, 412, states this rule as follows: "The principle, however, has no application in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same. The burden of proof was upon plaintiff in this case, in order to recover for a breach of such new duty, to establish, not that the employés might, by the exercise of reasonable care, have acquired such knowledge, but that they actually possessed it." See also Texas & Pacific Ry. Co. v. Staggs, 90 Tex. 458, 39 S.W. 295; St. Louis S. W. Ry. Co. v. Watts, 110 Tex. 106, 216 S.W. 391; Malone v. City of Plainview, Tex.Civ.App., 127 S.W.2d 201; Barber v. Anderson, Tex.Civ. App., 127 S.W.2d 358.

It is held that the time of discovery is the crucial issue in discovered peril cases and that an issue presenting the element of time must be directly submitted. Northern Texas Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41, 44; Northern Texas Traction Co. v. Singer, Tex.Civ. App., 34 S.W.2d 920; Malone v. City of Plainview, Tex.Civ.App., 127 S.W.2d 201. Justice Critz, writing as Commissioner the opinion in the Weed case, supra, said with reference to the element of time: "The vital and controlling issue in every case of discovered peril is whether the perilous position of the injured party is discovered in time to avoid the injury by the use of all the means at hand."

There must be also, of course, evidence tending to prove the third element, that is, that the person who caused the injury failed, after discovering the peril, to exercise ordinary care in using the means at hand to avoid injury to the person in peril.

From the fact that the highway was straight and the view unobstructed for a mile or a mile and a quarter the jury could reasonably have inferred that the driver of the automobile, being under the duty to keep a lookout, at some time before the collision saw the plaintiff's truck crossing the road. Brown v. Griffin, 71 Tex. 654, 9 S.W. 546; Texas & N. O. Ry. Co. v. Goodwin, Tex.Civ.App. 40 S.W.2d 182, application for writ of error refused. Even if we may say that the jury could reasonably have found from the facts in evidence that the driver of the automobile at all times, that is from the time when he was a mile or a mile and a quarter away from the place of the collision until the cars collided, actually saw the plaintiff's truck, there is no evidence tending to prove when plaintiff's position became perilous or when the driver of the automobile discovered or realized that it was perilous. Certainly it does not appear that there was imminent danger of injury to plaintiff from the approaching automobile when it was half a mile or even a quarter of a mile away, whether plaintiff was then crossing or was starting to cross the highway. It is difficult to understand how plaintiff could have been in a position of peril at all until a very short time before the collision occurred if there was no other traffic, no other persons or vehicles near. The highway was level and paved, with smooth gravel shoulders 25 feet wide on each side of the pavement. It is possible that other automobiles may have entered the highway from Beverly...