Williams v. Price

• Decision Date: 29 November 1957
• Docket Number: No. 15854,15854
• Citation: 308 S.W.2d 185
• Parties: Westall WILLIAMS, Appellant, v. Clifford PRICE, Appellee.
• Court: Texas Court of Appeals

Page 185

308 S.W.2d 185

Westall WILLIAMS, Appellant, v. Clifford PRICE, Appellee.

No. 15854.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 29, 1957.

Rehearing Denied Jan. 10, 1958.

T. B. Coffield, Bowie, Strasurger, Price, Kelton, Miller & Martin, and Hobert Price, Dallas, for appellant.

Jones, Parish & Fillmore, Wichita Falls, Peery & Wilson, Kearby Peery, and Tom D. Glazner, Wichita Falls, for appellee.

BOYD, Justice.

Appellee Clifford Price recovered judgment against appellant Westall Williams for damages for injuries sustained by himself and his wife in a collision on Highway 82 between a pickup truck in which they were riding and a Buick automobile driven by appellant.

The jury found that appellant drove his car on the occasion in question at a negligent rate of speed; that he drove it in excess of 60 miles per hour; that he failed to timely apply his brakes; and that each of such acts was a proximate cause of the collision. The jury also found that immediately before the collision appellee drove the pickup across the highway at a slower rate of speed than an ordinary prudent person would have driven under the same or similar circumstances, but that such conduct was not a proximate cause of the collision.

By his first group of points appellant contends that appellee's conduct in driving across the highway at such slow rate of speed was a proximate cause as a matter of law. After carefully considering a rather lengthy record, we have reached the conclusion that this contention must be overruled.

About 1:00 P.M., appellee, his wife, and her brother were traveling east in the pickup; appellee desired to stop at Wagonseller's store, which was about 60 feet north of the north line of the paved portion of the highway; the pavement was 24 feet wide; appellee signaled for a left turn, but drove to his right and stopped, with the right wheels of the pickup, and probably the left wheels, off of the pavement; a car was immediately behind him, going east; this car stopped behind and did not pass the pickup; after stopping, and again signaling a left turn, appellee made practically a right angle turn to his left and proceeded slowly across the highway toward the store; appellant's car was going west, and collided with the pickup at a point from 7 feet to 27 feet north of the north line of the pavement, according to different witnesses.

There is an incline to the east from the point of impact, and at 1,210 feet east the road is 14 1/2 feet higher than it is in front of the store. That elevation is maintained for about 200 feet to the east. From the front of the store one can first see a car approaching from the east when it is 1,376 feet away.

Appellee testified that as he shifted into low gear to make the turn, no car was in sight to the east, but as he was making the turn and when the front wheels of the pickup were on the south side of the pavement he saw appellant's car topping the hill to the east; he watched the car until the pickup had crossed the pavement, at which time the car was some 200 or 300 yards away; he apprehended no danger whatever in making the crossover; he estimated the speed of the car at from 50 to 60 miles per hour; after he had crossed the pavement and was heading to the west and 'fixing to stop,' he saw appellant's car about 60 feet away, 'And he was--appeared to be coming sideways, or, anyhow, he wasn't coming real straight.' The impact followed immediately.

Appellant's witness Smith, a highway patrolman, testified that tire and skid marks made by appellant's car extended approximately 150 feet up to the point of impact, and that for about 42 feet of that distance they were off of the pavement; that the pickup was knocked 90 feet from the point of impact. His expert opinion was that appellant was driving in excess of 60 miles per hour.

Partain testified that he was driving west and that appellant's car passed him about 3 or 4 miles east of the store; witness was driving 70 miles per hour, and appellant passed him 'like I was setting still;' he estimated appellant's speed to be from 85 to 90 miles per hour. After the collision, the pickup was lying on its side. Appellee and his wife were severely injured, and his brother-in-law was thrown from the pickup and killed. A witness testified that appellant said to him, shortly after the date of the accident, "Well, I guess it was my fault. I guess I was driving too fast, and when I applied my brakes up near the sign board, which is along there,' he says, 'my car skidded on loose gravel and I slid into the pickup sideways."

Appellant strongly relies on the holding in Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439, 441, writ refused, as supporting his contention that the slow rate of speed at which appellee crossed the highway was a proximate cause as a matter of law. There was an instructed verdict for the defendant, which was sustained. In our opinion, the facts in that case were not such as to make the holding conclusive here. There, Burton had been going east and made a left-hand turn near the center of a block. As he was angling to his left, he saw Cook's car 276 yards to the east, and coming west at a very high rate of speed. Upon reaching the point where he intended to make a sharp left turn, Burton again observed Cook's car, which was then approximately 130 to 150 feet from him. He testified that Cook had not reduced his speed and was still going at a 'teriffic' rate of speed. After observing Cook's car the second time, Burton glanced in his rearview mirror to observe the traffic to his rear and paid no further attention to Cook because, he said, he thought Cook surely would reduce his speed before reaching him. The court said that it was inescapable that Burton knew the collision would occur unless Cook reduced his rate of speed, and that 'It is conclusive from the record that if appellant had stopped, which he testified he could have done within two or three feet, and waited the two or three...