Valley Film Service v. Cruz

• Citation: 173 S.W.2d 952
• Decision Date: 14 July 1943
• Docket Number: No. 11319.,11319.
• Parties: VALLEY FILM SERVICE v. CRUZ.
• Court: Court of Appeals of Texas

Page 952

173 S.W.2d 952

VALLEY FILM SERVICE v. CRUZ.

No. 11319.

Court of Civil Appeals of Texas. San Antonio.

July 14, 1943.

Rehearing Denied September 1, 1943.

Appeal from District Court, 103d District, Cameron County; Jas. S. Graham, Judge.

Action by Pablino Cruz against Valley Film Service for injuries sustained in an automobile accident. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, and Kelley & Looney and L. Hamilton Lowe, all of Edinburg, for appellant.

Carter & Stiernberg, of Harlingen, for appellee.

MURRAY, Justice.

This is an appeal from a judgment of the District Court of Cameron County wherein appellee (plaintiff) was awarded damages against the appellant (defendant) for personal injuries sustained in a collision between a truck driven by defendant's employee and a wagon driven by plaintiff. The cause was tried to a jury and submitted on special issues, on the answers to which plaintiff was awarded damages in the sum of $8,815.

Below Pablino Cruz was plaintiff and Valley Film Service, an unincorporated business, and being the assumed name under which Tom Caraway does business, was defendant. One John W. Sample was the driver of defendant's truck. The collision occurred upon the highway leading from La Feria to Harlingen, about two miles west of Harlingen, just before the break of day on the morning of June 19, 1942. The wagon, drawn by a horse and a mule, was traveling in the direction of Harlingen, which was in an easterly direction, and the truck was traveling in the same direction when it overtook and collided with the wagon.

Appellant first contends that the issue of unavoidable accident should have been submitted to the jury. We sustain this contention.

The evidence shows that Pablino Cruz was driving his wagon in the right-hand lane of a three-lane highway, that he had adequate reflectors on the rear of his wagon and, according to his testimony, was entirely free from negligence. According to the testimony of Sample, the driver of the truck, he was proceeding down the highway at a lawful rate of speed, he saw another motor vehicle approaching him with headlights burning, and while he testified that these lights had no effect on him and that it was impossible for him to estimate how far away the vehicle was from him, he nevertheless dimmed his lights and pulled around someone on an electric scooter. Shortly after passing the scooter he crashed into the wagon, without seeing it until he was right on it, and after it was too late to avoid the collision. Lt. John B. Dubose, Jr., was the rider of the scooter, and in most respects corroborated the testimony of Sample. The Lieutenant further testified that he often traveled this highway, both in his car and on the scooter, at about this time of the morning. He had noticed that just before dawn it was very difficult to see. When there was light in the sky and the ground was still dark it was very difficult to see along the highway. Under all of this evidence a theory was presented under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law. The trial court committed reversible error in not submitting appellant's requested issue on unavoidable accident. Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777; Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521; Southern Transp. Co....