Wells v. Texas Pac. Coal & Oil Co.

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: Wells v. Texas Pac. Coal & Oil Co., 164 S.W.2d 660, 140 Tex. 2 (Tex. 1942)
• Decision Date: 03 June 1942
• Docket Number: No. 2419-7893.,2419-7893.
• Parties: WELLS v. TEXAS PAC. COAL & OIL CO. et al.

164 S.W.2d 660

WELLS v. TEXAS PAC. COAL & OIL CO. et al.

No. 2419-7893.

Commission of Appeals of Texas, Section A.

June 3, 1942.

Rehearing Denied October 21, 1942.

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

Action by Mrs. Charles S. Wells against the Texas Pacific Coal & Oil Company and others, for death of Charles S. Wells. Judgment for plaintiff was reversed by the Court of Civil Appeals, 151 S.W.2d 927, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Will R. Wilson, of Austin, Turner, Rodgers & Winn, of Dallas, and John Maxwell and Bryan & Maxwell, all of Waco, for plaintiff in error.

Naman, Howell & Boswell, of Waco, for defendants in error.

HICKMAN, Commissioner.

In the trial court Mrs. Charles S. Wells was awarded damages against the Texas Pacific Coal & Oil Company, O. L. Fletcher and J. H. Jackson, on account of the death of her husband, Charles S. Wells, who lost his life in a collision between an automobile which he was driving and a gasoline truck belonging to Fletcher, a commission salesman for the oil company, and being operated at the time of the collision by Jackson. The case was submitted to a jury upon special issues, all of which were answered favorably to the plaintiff. The special issues covered the primary negligence of the truck driver, the alleged contributory negligence of the deceased and the theory of liability under the doctrine of discovered peril. On appeal the Court of Civil Appeals at Waco held that, as a matter of law, there was no evidence of primary negligence on the part of the truck driver; that the evidence established the contributory negligence of the deceased as a matter of law, and that the evidence raised no issues of discovered peril. Based upon those conclusions the judgment of the trial court was reversed and judgment rendered that the plaintiff take nothing. 151 S.W.2d 927.

The accident happened on the Waco-Dallas Highway about three miles south of the town of West. The deceased, Wells, was driving south and the truck driver, Jackson, was driving north. The paved portion of the highway is 20 feet wide. On the west side of the pavement opposite where the collision occurred is located the Hilltop Filling Station. As its name indicates, it is located at the crest of a hill. As the automobile and truck approached each other the automobile turned to its left across the highway and the truck turned to its right and the collision occurred at about the time they reached the right-hand or east edge of the pavement.

It is the theory of Mrs. Wells that as the two vehicles approached the crest of the hill Jackson, who was driving his truck north up the hill, turned to his left (west) across the highway with the apparent intention of entering the driveway leading to the filling station; that when he reached a point where he could see over the top of the hill he discovered the approaching car driven by Wells and then turned his truck back to his right (east). It is her further theory that as Wells approached the crest of the hill he saw the truck angling across the road in front of him and apparently going into the filling station, and to avoid a collision he applied his brakes and turned his car sharply at an angle of 45 degrees to his left, but about that time Jackson turned back to his right and the collision resulted.

In answer to special issues the jury found that Jackson "turned such truck onto his left side of the highway just before the collision in evidence," which was negligence and a proximate cause of the death of Wells; that the failure of the truck driver to continue on across the highway after he had so turned onto the left side of same was negligence, and a proximate cause of the death of Wells; that the truck driver, after he had turned his truck onto the left side of the highway, then turned same back onto and across the right side of the highway, which was negligence and a proximate cause of the death of Wells; and that the truck driver failed to keep a proper lookout for approaching cars just before he turned his truck onto the left side of the highway, which was negligence and a proximate cause of the death of Wells. It will be observed that each and every act of primary negligence on the part of the truck driver found by the jury was based upon the fact that he turned his truck onto his left side of the highway just before the collision. If there is no evidence of probative value in the record that he turned his truck onto the left side of the highway, then there is no basis for any finding of primary negligence on his part. After carefully considering the record we are well convinced that the Court of Civil Appeals correctly held that the record contains no evidence of probative force that Jackson drove his truck across the center line of the highway.

It is familiar law that negligence is never presumed, and that the mere happening of an accident is no evidence at all of negligence. Phillips v. Citizens' National Bank, Tex.Com.App., 15 S.W.2d 550; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195.

It is argued that the physical facts establish that the truck must have been on the left-hand side of the road immediately before the accident. As we understand the argument the theory is evolved from the following bits of testimony: The overall length of the truck was about 30 feet; the car in which Wells was riding crossed the center line of the pavement 36 feet above where the collision occurred and was traveling at an angle of about 45 degrees across the highway. The place of the point of contact was on the pavement near its east edge; the width of the pavement was 20 feet; the focal point of the blow to the Wells car was on its right side at or near the junction of the right running board with the right front fender, while the focal point of the blow to the truck was on its left side at its left front fender just about at the front...