Vela v. Alice Specialty Co., 1346

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation607 S.W.2d 289
Docket NumberNo. 1346,1346
PartiesAurora Cantu VELA, Appellant, v. ALICE SPECIALTY CO. et al., Appellees.
Decision Date09 October 1980

Page 289

607 S.W.2d 289
Aurora Cantu VELA, Appellant,
ALICE SPECIALTY CO. et al., Appellees.
No. 1346.
Court of Civil Appeals of Texas, Tyler.
Oct. 9, 1980.

James A. Smith, Port LaVaca, for appellant.

J. M. Burnett, H. T. Hermansen, Jr., Dyer & Redford, Corpus Christi, for appellees.

SUMMERS, Chief Justice.

This is an intersection collision case. The case was tried to a jury, which in response to special issues submitted, found that appellant Vela, plaintiff below, failed to yield to appellee Hudson's right-of-way, that such was negligence and a proximate cause of the accident.

We affirm.

Page 290

The accident occurred outside the city limits of Taft, Texas, at the intersection of Davis Street (FM 631) and Verbina Street, a county road. Davis runs in a north-south direction and is intersected by Verbina on the east and west. Verbina does not intersect Davis at regular right angles but rather is offset to the south on the east side of Davis as compared with Davis' west side. The evidence adduced at trial reveals that while there had formerly been a stop sign on Verbina Street to the west of Davis, at the time of the accident it was not in place. Both streets were approximately the same width and there were neither curbs no center lines on either street.

At the time of the accident, appellee Hudson (Alice Specialty Company's driver) was traveling south on Davis Street, and appellant Vela was traveling east on Verbina. Thus, as Hudson was approaching the intersection, Mrs. Vela was to his right. The truck driven by Hudson struck Mrs. Vela's automobile on the left front quarter panel and driver's door. From the evidence, it is not clear which driver first entered the intersection.

Trial was to the jury upon negligence theories. The trial court submitted negligence and proximate cause issues predicated on issues for both parties involving right-of-way, lookout, speed and brakes, as well as Mrs. Vela's issue inquiring whether Mr. Hudson failed to turn right before the occurrence. The jury's verdict turned upon its answer to Special Issue No. 13, viz.:

Do you find from a preponderance of the evidence that Aurora Cantu Vela failed to yield the right-of-way to the vehicle driven by Donald Ray Hudson?

Answer "We do" or "We do not."

Answer: We do.

together with its findings that such failure was negligence (Special Issue No. 14) and a proximate cause of the occurrence (Special Issue No. 15). The jury also affirmatively answered both Vela's and Hudson's lookout issues but found that neither was a proximate cause of the accident; to all other issues it responded negatively.

Appellant Vela presents various attacks on the composition and submission of both right-of-way issues. Her points of error (Points 1-4) complain of the trial court's submission of these issues without a proper right-of-way instruction, its failure to give her requested instruction and its refusal to submit her tendered issues "... because the issues requested properly state the law of the case, while the issues actually submitted do not." In oral argument appellant made it apparent that the essence of her complaint was that the charge was defective due to the court's failure to include a right-of-way instruction and was therefore reversible error.

We disagree.

Uncontroverted testimony in the lower court reveals that the intersection of Davis and Verbina Streets, from the direction the parties were traveling, was an uncontrolled intersection. In such an instance, Article 6701d § 71 applies. 1 That article provides:

(d) Except as provided in Subsection (d-1) of this section, the driver of a vehicle approaching the intersection of a different street or roadway, not otherwise regulated herein, or controlled by traffic control signs or signals, shall stop, yield and grant the privilege of immediate use of such intersection to any other vehicle which has entered the intersection from such driver's right or is approaching such intersection from such driver's right in such proximity thereto as to constitute a hazard and after so stopping may only proceed thereafter when such driver may safely enter such intersection without interference or collision with traffic using such different street or roadway. 2

Page 291

While the controlling right-of-way issues...

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    • June 16, 1983 is considered waived upon the appeal of the case. See Davis v. Campbell, 572 S.W.2d 660, 663 (Tex.1978); Vela v. Alice Specialty Co., 607 S.W.2d 289, 291 (Tex.Civ.App.--Tyler 1980, no writ); Crutcher-Rolfs-Cummings v. Ballard, 540 S.W.2d 380, 388-389 (Tex.Civ.App.--Corpus Christi 1976, w......
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