Western Development Corporation v. Simmons, 3786.
| Citation | 124 S.W.2d 414 |
| Decision Date | 19 January 1939 |
| Docket Number | No. 3786.,3786. |
| Parties | WESTERN DEVELOPMENT CORPORATION v. SIMMONS. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Cameron County; A. M. Kent, Judge.
Action by Clayton G. Simmons against Western Development Corporation for injuries sustained by plaintiff's wife wherein an automobile which he was driving collided with a parked truck of the defendant. From a judgment for the plaintiff defendant appeals.
Affirmed.
G. Lorimer Brown, of Harlingen, for appellant.
Carter & Stiernberg, of Harlingen, for appellee.
In this case appellee, who was plaintiff below, recovered of appellant, which was defendant below, on account of injuries to appellee's wife and to the automobile she was driving when she was injured. Mrs. Simmons was alone driving an Ford Sedan upon Jackson Street, the main business street of the City of Harlingen, at about 5:45 A. M., on December 31, 1937, in order to drive her husband home when he should cease his work at 6 A. M. It was still dark and the visibility was further limited by a heavy fog. One of appellant's employees, while acting within the scope of his employment, had parked a truck belonging to appellant near the center of Jackson Street, but closer to the north side of the street than to the south side thereof. He left the truck parked without any rear lights burning to warn motorists of its presence. Mrs. Simmons failed to see the truck until it was revealed by the headlights of her own automobile, at which time, she testified, she did not have time to stop her car or to avoid hitting the truck by going to the right of it, the lane between it and other parked cars being very narrow. As a result appellee's car was damaged and Mrs. Simmons suffered severe personal injuries. There was in effect at the time an ordinance of the City of Harlingen containing the following provisions:
In response to special issues the jury found that the act of defendant's employee in parking the truck near the center of Jackson Street constituted negligence that was a proximate cause of the collision; that the parking of the truck and leaving the same standing without tail lights burning constituted negligence which was a proximate cause of the collision; that the truck was parked closer to the north side of the street than to the south side, and that the act of defendant's servant in so parking it was negligence and was a proximate cause of the collision; that the truck was parked so that there was not enough room left on the north side of the street for motorists to "negotiate" a passage without endangering their lives and property, and that such parking was negligence and a proximate cause of the collision; that Mrs. Simmons maintained a proper lookout for her own safety and no failure to maintain the same was a proximate cause of the collision, and that at and immediately prior to the time of the accident she was not driving at a rate of speed in excess of that at which an ordinarily prudent person would have driven under the same or similar circumstances, nor was the rate of speed at which she was driving a proximate cause of the collision; that Mrs. Simmons was not operating plaintiff's automobile at a rate of speed in excess of that at which she could bring her automobile to a stop within the range of vision illuminated by her own lights; that at and immediately prior to the time of the collision she did not have sufficient control of the automobile to stop it within the area lighted by her own lights, but that said lack of control was not a proximate cause of the collision. Upon the findings made by the jury the court entered judgment for the amount of damages assessed by the jury, and from that judgment defendant appeals.
OpinionAs pertinent to various assignments of error appellant submits two propositions which are so interrelated in substance that we will consider them together.
By its first proposition appellant urges that it is the duty of an automobile driver at night to keep such an outlook ahead that he will see an obstruction or condition in the highway as soon as it is illuminated by his own lights, even though such obstruction or condition is itself unlighted, and that it is his further duty to keep his own car under such control that it may be stopped within the area lighted by his own...
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Le Master v. Fort Worth Transit Co., 14069.
...applicable in cases of contributory negligence. Likewise, we are earnestly requested to study the holding in Western Development Corporation v. Simmons, Tex.Civ.App., 124 S.W.2d 414, writ refused. In that case defendant had left a truck parked in the street at night without lights, in viola......
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El Rancho Restaurants, Inc. v. Garfield, 14744
...of fact for determination by the jury, Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Western Development Corp. v. Simmons, 124 S.W.2d 414 (Tex.Civ.App.--El Paso 1939, writ ref'd); 40 Tex.Jur.2d, § 165, and in order for a court to hold as a matter of law that a certain negligent act......
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Gulf Brewing Co. v. Goodwin, 10918.
...Pennington Produce Co. v. Wonn, Tex.Civ.App., 49 S.W.2d 482; Swiff v. Michaelis, Tex.Civ.App., 110 S.W.2d 933; Western Development Corp. v. Simmons, Tex.Civ.App., 124 S.W.2d 414. It is this court's conclusion that this record does not show that this appellee "voluntarily exposed himself to ......
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Lone Star Gas Co. v. Fouche
...Produce Co. v. Wonn, Tex.Civ.App., 49 S.W.2d 482. Swiff v. Michaelis, supra, is directly in point." Western Development Corp. v. Simmons, Tex.Civ.App., 124 S.W.2d 414, 416, writ In addition to the above case, and the other cases cited in said opinion, see also McCullough Box & Crate Co. v. ......