Wilkinson v. Southern Farm Supply Ass'n, 7651
| Decision Date | 24 October 1966 |
| Docket Number | No. 7651,7651 |
| Citation | 409 S.W.2d 435 |
| Parties | J. R. WILKINSON et al., Appellants, v. SOUTHERN FARM SUPPLY ASSOCIATION et al., Appellees. . Amarillo |
| Court | Texas Court of Appeals |
Nelson, McCleskey & Harriger, Lubbock, Don Graf, Lubbock, of counsel, for appellants.
Crenshaw, Dupree & Milam, Lubbock, J. Orville Smith, Lubbock, of counsel, for appellees.
On July 28, 1964, at about 10:00 o'clock p.m. Dick Wilkinson, a thirteen-year old boy, was injured in a collision between a propane truck and a Volkswagen stationwagon in which Dick was riding as a passenger. J. R. Wilkinson and Betty Wilkinson, parents of Dick Wilkinson, brought the suit against Southern Farm Supply Association, the owner of the propane truck and Sylvester Witt, the driver of the truck, to recover damages, individually and on Dick's behalf. The parties will be referred to hereafter as they were in the trial court.
It was plaintiffs' contention the defendants were negligent in leaving the butane truck stopped, parked or standing upon the paved or main traveled part of the highway contrary to the statutes of the State of Texas, Vernon's Ann.Civ.St. Article 6701d, Section 93(a); in leaving the truck stopped, parked or standing upon the paved or main portion of the highway when a reasonable, prudent man would not have done so under the same or similar circumstances; in failing to driver the truck off of the highway onto the shoulder of the road; in failing to place out flares to the rear of the truck; in failing to keep a proper lookout for approaching traffic; in failing to have the lights of the truck on and properly working; in failing to give proper warnings to approaching traffic and that each and all of the acts of negligence were a proximate cause of the collision and injuries.
The defendants answered setting out several acts of negligence of Harry Kumlin, driver of the stationwagon, and that such acts and each of them was the sole proximate cause of the collision and damages resulting therefrom. Defendants further pleaded that the collision was wholly unavoidable and that the same was caused by a new dependent and intervening cause, towit: the rain and smoke present on the occasion in question. The defendants also answered pleading that the defendant, Sylvester Witt, was confronted with a sudden emergency which arose suddenly and unexpectedly and which was not caused or brought about by any act or remission on the part of said defendant so that said defendant under the circumstances and conditions which suddenly confronted him acted as an ordinary prudent person would have acted under the same or similar circumstances in the face of such sudden emergency.
The case was submitted to a jury upon special issues. The jury found it was not negligence to stop the truck at its location on the highway just prior to the collision in question; that Sylvester Witt failed to keep a proper lookout for traffic approaching from the west just prior to the collision in question; but such failure was not a proximate cause of the collision; that Witt's failure to put out a flare to the rear of the truck prior to the collision was negligence but was not a proximate cause of the collision; that Witt was not negligent in failing to warn traffic approaching from the west by the use of his flashlight; that Witt did not fail to have each of the lights on the rear of the truck properly visible to traffic approaching from the west; that Sylvester Witt at the time of the collision was acting in an emergency and that after such emergency arose Witt acted as a reasonable prudent person would have acted under the same or similar circumstances; that Harry Kumlin failed to keep a proper lookout under the circumstances and conditions existing on the occasion in question but that such failure was not the sole proximate cause; that the failure of Harry Kumlin to turn to the left before the collision was not the sole proximate cause of the collision in question; that before the collision Harry Kumlin failed to make a timely application of his brakes but that such failure was not the sole proximate cause of the collision; that the collision was not an unavoidable accident. The remaining issues and answers were as to the amount of damages.
The trial court entered judgment that plaintiffs take nothing. Plaintiffs filed a motion for a new trial and an amended motion for a new trial and presented evidence at the hearing on the motion for new trial as to the misconduct of the jury. The trial court overruled the motion for a new trial and from that order and judgment plaintiffs perfected this appeal.
Plaintiffs contend by their first point of error that the court erred in failing to submit to the jury the requested Special Issues 2 and 3. Issue 2 asked if it was negligence to leave the truck standing at its location on the leave the truck standing at its location on the highway just prior to the collision in question and Issue 3 was whether such negligence was a proximate cause of the collision in question. The place where the accident happened was a four-lane highway--two lanes for traffic going east and two lanes for traffic going west. The propane truck was proceeding in an easterly direction and the car that was on fire had been going west before it caught fire and had stopped across the highway to the northwest from where the accident happened.
Just prior to the accident Sylvester Witt was driving to the east in a truck loaded with propane gas, the total weight of the rig being about 56,000 pounds. When he saw smoke ahead of him on the highway he slowed down and saw two men running from a burning car on the highway waving for him to stop. When he was alongside of the men they asked for his fire extinguisher. Witt pulled on past the burning car about 100 to 150 feet; stopped at the extreme edge of the south lane of pavement. Witt testified he flipped on his emergency lights which flashed red to the rear and amber to the front and went to the portion of the truck where the fire extinguisher was kept, removed it and handed it to the men who flagged him,...
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