Walsh v. Hershey

• Decision Date: 15 October 1971
• Docket Number: No. 17247,17247
• Parties: Lisa WALSH et al., Appellants, v. Elmer Eugene HERSHEY, Appellee.
• Court: Texas Court of Appeals

Page 954

472 S.W.2d 954

Lisa WALSH et al., Appellants, v. Elmer Eugene HERSHEY, Appellee.

No. 17247.

Court of Civil Appeals of Texas,

Fort Worth.

Oct. 15, 1971.

Rehearing Denied Nov. 19, 1971.

Wright & Barber, and William A. Barber, Jr., Grand Prairie, for appellants.

Strasburger, Price, Kelton, Martin & Unis, and Royal H. Brin, Jr., Dallas, for appellee.

OPINION

BREWSTER, Justice.

Automobiles being driven by the plaintiff, Doris Walsh, and by the defendant, Elmer E. Hershey, collided at an intersection in the City of Irving, Texas. The plaintiff, Doris Walsh, brought this action for herself and as next friend of her minor daughter, Lisa Walsh, who was an occupant of her car at the time, against Hershey seeking to recover for personal injuries and property damage allegedly sustained by the two plaintiffs in the collision. Following a jury trial judgment was rendered that Doris Walsh take nothing by her suit and that the plaintiff, Lisa Walsh, recover $1,500.00 in damages for her pain and suffering from defendant, Hershey. Both plaintiffs have brought this appeal from that judgment.

We affirm the judgment.

The jury found that Hershey failed to keep a proper lookout, and failed to yield the right of way to the Walsh car, and that each such failure was a proximate cause of the occurrence in question. It also found that Doris Walsh failed to keep a proper lookout and that such failure proximately caused the occurrence in question.

Issues Nos. 16 and 17 of the charge inquired whether Doris Walsh failed to keep a proper lookout and whether that failure was a proximate cause of the occurrence.

Appellants' points 6 through 17, inclusive, attack the court's action in submitting those two issues to the jury and also in rendering judgment against Mrs. Walsh based on the jury's answers to those issues.

Appellants urge in those points that there was 'no evidence' and 'insufficient evidence' to justify a submission of either issue and that the jury's findings in answer to these two issues is against the great weight and preponderance of the evidence.

We overrule all of those points.

In considering the no evidence points, the insufficiency of the evidence points, and the contention that the jury's findings on the proper lookout and related proximate cause issues as to Mrs. Walsh were against the great weight and preponderance of the evidence, we have reviewed the whole record. The law applicable in determining those points is well set out in Jameson v. Melton, 366 S.W.2d 115 (Dallas, Tex.Civ.App., 1963, no writ hist.).

A summary of the evidence in this case shows that this collision occurred at the intersection of O'Connor and Rock Island Roads in the City of Irving, Texas, on January 11, 1969, at about 7:30 P.M., which was after dark; Mrs. Walsh was then travelling south on O'Connor and Hershey was going east on Rock Island Road, intending to turn and go north on O'Connor when he got into the intersection; traffic entering the intersection from Rock Island Road, as Hershey was doing on the occasion, was controlled by a stop sign; there were no traffic controls at the intersection facing traffic on O'Connor.

Hershey testified that when he came to the stop sign he stopped. He then saw a car travelling north on O'Connor and was watching it. It was to his right. He said he then entered the intersection at about five miles per hour and his car struck Mrs. Walsh's car on the front right fender. Her car came from his left. He said he did not see her car until the impact. It was dark and his headlights were on at the time.

Among the other testimony to be considered by the jury in passing on this proper lookout issue was Mrs. Walsh's own statements while testifying to the following effect: prior to reaching the intersection she passed under a railroad trestle, which was located on O'Connor about one-fourth of a block north of the intersection; she was travelling south at twenty to twenty-five miles per hour; from the trestle one can see any car travelling east that was stopped at the stop sign on Rock Island and can also see automobile traffic west of there that is going east on Rock Island; there was nothing there to obstruct one's view of that traffic; on the occasion of the wreck, she did not see the Hershey car prior to the time it entered the intersection; she could not estimate approximately where Hershey's car was when she first saw it, but it was right on her and she could see its lights and it was coming fast and she knew he was going to hit her; and she did not honk her horn, apply her brakes or turn to the left prior to the wreck.

Upon the occasion in question, Mrs. Walsh had the right of way. Even though this was true, she still had the duty to keep a proper lookout as she entered into and travelled through the intersection.

The law applicable is expressed in Strawder v. Pantoja, 372 S.W.2d 246 (Houston, Tex.Civ.App., 1963, ref., n.r.e.) as follows: 'These cases hold that one is not required to anticipate that another will disregard stop signs or commit other acts of negligence. However, one may not close his eyes to an obvious danger 'which would have been observed by a person of ordinary prudence similarly situated.' Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. Appellee was not relieved of his duty to keep a proper look-out merely because he had the right of way.' (Cites a group of cases.)

In discussing proper lookout in an intersection collision case such as this the Supreme Court in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958) said: 'In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.'

The jury in this case could have believed from the evidence and proper inferences therefrom that if Mrs. Walsh had, as she approached or as she entered the intersection in question, looked to the west to observe the traffic on Rock Island at the stop sign and that which was approaching the intersection from that direction that she would have seen Hershey's car in time to have avoided the collision by honking her horn, applying her brakes or turning to the left.

We hold that there was sufficient evidence to support the submission of the proper lookout and proximate cause issues as to Mrs. Walsh, and that the jury's answers to such issues were not against the great weight and preponderance of the evidence. Lynch v . Ricketts, supra; Griffith v. Hudspeth, 378 S.W.2d 153 (San Antonio, Tex.Civ.App., 1964, no writ hist.); Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829 (Fort Worth, Tex.Civ.App., 1959, ref., n.r.e.); De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955); Mrs. Baird's Bread Company v. Williams, 425 S.W.2d 1 (Texarkana, Tex.Civ.App., 1968, ref., n.r.e.); Sneed v. Fort Worth Transit Company, 427 S.W.2d 920 (Fort Worth, Tex.Civ.App., 1968, no writ hist.); Strawder v. Pantoja, supra; and Owens v. Acme Oil Company, 408 S.W.2d 947 (Tyler, Tex.Civ.App., 1966, ref., n.r.e.).

The appellants' first 5 points complain in various ways of the court's action in denying both of the appellants any recovery at all for future medical expenses.

We overrule all of those points.

At the time of the wreck, on January 11, 1969, the appellant, Lisa Walsh, was 8 years old. The judgment in this case was signed on January 6, 1971.

Plaintiffs' pleading sought recovery for Doris Walsh of future medical expense in the amount of $500.00 that she alleged would in reasonable probability be necessarily incurred in the treatment of injuries sustained by Lisa between date of the wreck and the time Lisa reached 21 years of age and sought recovery of $1,500.00 for Lisa Walsh for future medical expenses for Lisa that they alleged Lisa would probably incur after she reached 21 in treating her injuries.

The future medical expense issue in the charge as to Lisa Walsh was as follows:

'ISSUE NO. 13: What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would be compensation for the reasonable expenses, if any, for necessary medical care which Lisa Walsh will, in reasonable probability, require in the future for treatment of her injuries resulting from the occurrence in question?'

The jury's answer was $3000.00.'

The charge did not contain issues breaking this inquiry into two parts--(1) the future medical for Lisa Walsh between the time of trial and the time she became 21; and (2) the future medical expense for her after she became 21.

It was important from plaintiffs' standpoint, under the facts of this case, that the inquiry made to the jury in Issue No. 13 be broken into two parts because the cause of action for the recovery of future medical expenses of the minor between date of the trial and her 21st birthday belonged to the parent, Doris Walsh, and the cause of action for those future medical expenses that Lisa would probably incur after her 21st birthday belonged to Lisa Walsh. Bering Mfg. Co. v. Peterson, 28 Tex.Civ.App. 194, 67 S.W. 133 (1902, writ dism.); ...