Wilson v. King
| Decision Date | 26 March 1958 |
| Docket Number | No. 10563,10563 |
| Citation | 311 S.W.2d 957 |
| Parties | Vernon Leroy WILSON et al., Appellants, v. Vernon Vitus KING, Jr., Appellee. |
| Court | Texas Court of Appeals |
Victor Gleckler, Austin, for appellants.
Hart, Brown, Sparks & Erwin, Austin, for appellee.
This is an appeal from a judgment, based on jury findings, denying appellants recovery for damages growing out of a headon collision occurring in the evening of May 28, 1955 on a three lane paved highway, appellee's car being driven south on the west lane and the Wilson car being driven north came into collision in the west lane. Two suits were filed on May 24, 1957, and were consolidated for trial.
The allegations of negligence were the same in both cases, and were that the defendant tried to make use of the center lane when same was occupied by plaintiff's car coming from an opposite direction; in operating the automobile at an excessive rate of speed; in failing to have his automobile under proper control; in failing to keep a proper and careful lookout; in failing to turn to the right to avoid colliding with the concoming automobile, and in failing to yield the right of way.
The defendant answered by general denial, alleged specific negligence on the part of the driver of the Wilson car proximately causing the collision and of the alleged death and injuries; that the car being driven by Edwin Vernon Wilson was suddenly driven and operated from the east lane into and across the center lane and into the west lane at a place about 150 feet in front of defendant's car; that Wilson operated his car at an unlawful rate of speed, failed to keep a proper lookout, failed to drive his car on his right side of the highway and failed to yield the right of way.
The case was submitted to the jury on special issues and findings were made that King was not operating his car in the center lane, and that King did not fail to turn his car to the right, that King did not fail to maintain proper control of his automobile. The jury found that the collision between the car driven by King and the car driven by Vernon Wilson occurred in the western lane of the three lane highway; that Wilson drove his car into the most western lane, while driving north on the three lane highway; that in driving his car into the most western lane Wilson was negligent, that such negligence was a proximate cause of the collision, and the sole proximate cause of the collision; that Wilson failed to keep a proper lookout, that such failure was not a proximate cause of the collision, that the collision was not the result of an unavoidable accident.
Motion for a mistrial was overruled.
Motion for a New Trial was made based on improper argument and improper conduct of the jury, and in submitting certain issues and in failing to submit certain issues.
The appeal is founded on six assignments and are that the Court erred in not submitting special issues on 'discovered peril,' in not submitting unconditionally Issues Nos. 5 and 6, because of improper argument of counsel,...
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