Watts v. Dallas Ry. & Terminal Co.

• Citation: 279 S.W.2d 400
• Decision Date: 06 May 1955
• Docket Number: No. 14917,14917
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Parties: Robert C. WATTS et ux., Appellants, v. DALLAS RAILWAY & TERMINAL CO., Appellee.

Page 400

279 S.W.2d 400

Robert C. WATTS et ux., Appellants, v. DALLAS RAILWAY & TERMINAL CO., Appellee.

No. 14917.

Court of Civil Appeals of Texas, Dallas.

May 6, 1955.

Rehearing Denied June 3, 1955.

Marshall & Carlton, Dallas, for appellants.

Burford, Ryburn, Hincks & Ford, and Bruce Graham, Dallas, for appellee.

YOUNG, Justice.

The suit involves a right-angle intersectional collision of the Watts (appellants) automobile with a public bus owned and operated by defendant Company. Upon jury trial and answers to special issues, plaintiffs filed motion for judgment disregarding certain jury answers; which, being overruled, judgment was rendered for defendant on basis of verdict, with result of this appeal.

The material facts at issue between the parties are sufficiently reflected in said jury findings (numbered as in the court's charge), viz: That from a preponderance of the evidence, (1) defendant's operator Love drove the bus in question into the intersection (Elm and Central Expressway) at a time when the traffic control light facing him was red, which was a proximate cause of the collision; (3) said driver having failed to exercise ordinary care in application of brakes, also a proximate cause; (5) but that said driver was not operating his bus at a greater speed than a person of ordinary care and prudence would have driven same under the same or similar circumstances; (7) defendant's driver had failed to keep a proper lookout, which was a proximate cause of the collision; (9) that plaintiff Glenda Watts, on the occasion, was not driving her car at a rate of speed greater than a person of ordinary prudence would have operated same; (11) she did not fail to exercise ordinary care in application of brakes on her automobile at the time; (13) Glenda Watts failed to allow defendant's bus time to clear the street intersection before she attempted to enter same, which was negligence and a proximate cause of collision (16) that she had failed to keep a proper lookout for defendant's bus, which was a proximate cause of said collision; (18) that the collision was not the result of an unavoidable accident; (19-20) that the reasonable cash market value of plaintiff's Pontiac car before the collision was $2,575, and afterwards was $1,000; (21) compensation to Mrs. Watts for injuries sustained, inclusive of doctors, hospital and medical bills, etc., was fixed at $15,000.

Appellants advance four points as basis of appeal; in effect, that the foregoing jury findings, adverse to them (13, 16), were supported by no evidence or at least insufficient evidence; jury misconduct in that statements were made during their deliberations concerning immateriality of the issues on contributory negligence of Mrs. Watts and to effect that plaintiffs would record despite such findings; the court's submission of issues 13, 14 and 15 was error,-over objection of appellants that same 'constituted comments on the weight of the evidence, assumed duties owed by the plaintiff which were nonexistent or at least disputed, assumed the lawful presence of defendant's bus in the intersection which was disputed, and were vague, indefinite and general.'

Elm Street, running generally east and west, has two lanes of traffic each way; Central Expressway, lying north and south, is a one-way street northward with four lanes of traffic; each street being a main and busy thoroughfare, fifty feet wide at this intersection, and controlled by traffic signal lights. Business structures stand on each of these four corners, materially obstructing the view to travelers moving up to the intersection from either street. Main Street, Commerce, and Jackson, in that order, parallel Elm as one proceeds north on Expressway (formerly Preston Street), likewise controlled by signal lights. At about 7:00 o'clock of the evening, August 19, 1953, Mrs. Watts had turned into the Expressway from Jackson Street, going north, and, as she remembered, taking the second or third lane from her left side. She had stopped at Main Street on the signal, then proceeding through, traveling at speed of some 20 to 25 miles per hour, moving into the Elm Street intersection without pause. In the meantime, defendant's bus, traveling east on Elm Street, had arrived at the same intersection just as the signal light was changing to 'red' and, without stopping, proceeded across the intersection at about 20 miles per hour; plaintiff's car colliding head-on with bus at about its middle side. The impact threw Mrs. Watts from car to pavement in vicinity of the southeast intersection of these streets, resulting in damage to her car and the personal injuries here complained of.

Under the circumstances thus generally pictured, appellants strenuously argue an absence of facts to support the jury finding that Mrs. Watts had failed to keep a proper lookout on the occasion in question, proximately contributing to the collision; or alternatively, an insufficiency of evidence tending to show 'that plaintiff could have possibly avoided the collision' in this: That she was not duty bound to anticipate the presence of said bus until its entry into the intersection against the red light. She was then 25 to 30 feet south of the crossing, the only interval afforded Mrs. Watts for discovery of the bus, traveling at 20 miles per hour, at this, a blind intersection, being 1.7 seconds ¹; demonstrating, in other words, that she could not have avoided the collision in exercise of the utmost care. The contention made requires a re sume of the material testimony concerning this accident which the jury found to have been avoidable.

Plaintiff Mrs. Watts said that she accelerated speed of her car after crossing Main Street, but going only at about 20 miles per hour on entering the next intersection, Elm Street; that when she first saw the bus it was 'right there' in front of her, no time to put on brakes, she realizing that at rate of speed she was traveling and way the bus was moving there would be a collision; that she was familiar with the intersection, knowing there was travel on both streets; that had she seen the bus a little earlier than she did see it, she would have put on her brakes; the reason for not using them was that she did not see the bus. Here we quote from the testimony of Mrs. Watts on redirect examination:

'Q. And as you were proceeding north on Central Expressway immediately prior to this collision, where were you looking? A. In front of me.

'Q. Were you looking at either of the lights, traffic lights? A. Yes.

'Q. Where were those lights located facing you? A. Well, to my near right and to my far left.

'Q. Were you looking at either one of them that you recall? A. Yes, sir.

'Q. Which one? A. The one to my left.' (Emphasis ours.) Lester May, testifying for plaintiff, witnessed the collision. He was also headed north on Expressway to the left of plaintiff; stating that on coming to Elm Street he stopped an instant for the green light, starting on, but saw the bus and stopped; the Pontiac (plaintiff's car) coming on to his right, not stopping, and hitting the bus; and that her car was moving at a slow rate of speed. Troy Birchfield, plaintiff's witness, was likewise driving north on Expressway behind Mrs. Watts; testifying that he saw the bus as it came into the intersection; that buildings to left and right on Elm Street kept one from seeing up and down that street until 'pretty close' to the intersection; that plaintiff's car was not going too fast to stop, but that witness saw no indication of any slackening of speed before she ran into side of the bus.

Police Officer Rogers, arriving some ten minutes later, testified that the point of collision of vehicles was 36 feet into the Elm Street...