De Winne v. Allen

• Decision Date: 23 March 1955
• Docket Number: No. A-4787,A-4787
• Citation: 154 Tex. 316,277 S.W.2d 95
• Parties: Camille DE WINNE et ux., Petitioners, v. William ALLEN, By and Through His Guardian ad litem, Edgar Pfeil, Respondents.
• Court: Texas Supreme Court

Page 95

277 S.W.2d 95

154 Tex. 316

Camille DE WINNE et ux., Petitioners, v. William ALLEN, By and Through His Guardian ad litem, Edgar

Pfeil, Respondents.

No. A-4787.

Supreme Court of Texas.

March 23, 1955.

Rehearing Denied April 20, 1955.

Baskin, Casseb & Casseb, San Antonio, Solomon Casseb, Jr., San Antonio, John M. Gilliland, San Antonio, for petitioners.

Glosserman & Pfeil, San Antonio, Moursund, Ball, Bergstrom & Barrow, San Antonio, for respondent.

WALKER, Justice.

Petitioners, Mr. and Mrs. Camille DeWinne, instituted suit against respondent, William Allen, for damages resulting from a collision between the automobile driven by Mr. DeWinne and in which Mrs. DeWinne was a passenger and the automobile operated by the respondent. The jury found the respondent failed to keep a proper lookout and was negligent in traveling the wrong direction on a one-way street, and that his negligence in each respect was a proximate cause of the collision. In answer to Special Issues Nos. 17 and 18, the jury also found that Mr. DeWinne failed to keep a proper lookout and that such failure was a proximate cause of the collision. On proper motion by petitioners to disregard the jury's answers to Special Issues Nos. 17 and 18, the trial court rendered judgment for the petitioners notwithstanding the verdict. The Court of Civil Appeals concluded that there is evidence to support the findings of contributory negligence and proximate cause and reversed and remanded the case with instructions. 268 S.W.2d 677.

Petitioners' points Nos. 4 to 15, inclusive, assert in various ways the absence of evidence to support the jury's answers to Special Issues Nos. 17 and 18. After a careful consideration of all the evidence, and viewing the same in the light most favorable to the verdict, we have concluded that these issues were raised by the evidence and that the trial court erred in disregarding the jury's answers thereto.

The collision occurred at the intersection of two one-way streets in San Antonio: Houston Street, which extends and on which traffic is required to move from west to east and San Saba Street, which extends and on which the traffic is required to proceed from south to north. Each street is approximately 38 feet in width. A stop sign required traffic going north on San Saba to stop before entering Houston. There was no traffic control at the intersection for vehicles on Houston. Petitioners were driving east on Houston and respondent was going south on San Saba, each vehicle traveling at approximately 20 miles per hour. It was night, and the lights on both automobiles were burning. Mr. DeWinne testified that he knew San Saba was a one-way street and was expecting traffic to come only from his right; that a bus was stopped at the stop sign on San Saba Street and another car was approaching the intersection from the south; that prior to the collision he glanced to the left, but that 'I couldn't see a block away from there * * * he could be a block away from there when I glanced'; that there is a difference between glancing and looking; that a glance is a quick eye-swing to the left; that he glanced to the left and looked to the right; that he concentrated on the right-hand side and was looking to the right; that he looked at his speedometer just before the accident happened; that he saw no traffic other than the bus and car to his right; that he did not see respondent's car until after the collision; that if he had turned to the right before the collision he would have run into the bus; that the force of the collision turned him to the right; that his car was in good running condition and that he could have stopped instantly. Respondent testified that San Saba is wide enough for four lanes of traffic; that he was traveling in the left of the two lanes on his right side of the street; and that after his car had entered the intersection he saw the DeWinne vehicle and turned his wheels to the left in an effort to avoid a collision. The initial impact was between the left front of petitioners' vehicle and the right front of respondent's car. The police accident investigator, who arrived at the scene a short time after the collision occurred, testified that from the debris on the street he located the point of impact at 12 feet east of the west curb line of San Saba and eight feet north of the south curb line of Houston Street.

It is well settled that a person is not bound to anticipate negligent or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, wr. ref. In the absence of knowledge to the contrary, therefore, Mr. DeWinne was entitled to assume that no vehicles were traveling in a southerly direction on San Saba Street, and was under no duty to look to the north for the purpose of ascertaining whether or not a vehicle was approaching the intersection from that direction.

It does not, however, necessarily follow that as a matter of law Mr. DeWinne kept a proper lookout. Every person proceeding along or across a public street is under the duty at all times to maintain a proper lookout for his own safety, and may not proceed blindly and in disregard of dangers that might reasonably be anticipated to exist. Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, wr. ref. Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, wr. ref. It cannot be said that the only peril which reasonably might have been anticipated by Mr. DeWinne under the circumstances would necessarily have arisen from events occurring or conditions existing to his right. The fact that petitioners were appraoching the intersection of two one-way streets and that danger would more likely arise from vehicles to their right did not eliminate the possibility of their encountering pedestrians, street defects or other conditions creating a situation of peril. The jury was entitled to infer from Mr. DeWinne's testimony that his glance to the left was not an observant look and may have occurred when petitioners were some distance from the intersection, and that he thereafter looked only to the right and at his speedometer. The testimony of the investigating officer as to the location of the point of impact and the evidence as to the width of the streets and the speed of the vehicles indicate that when respondent's car entered the intersection petitioners' automobile was some 18 feet west of the intersection, and that respondent was almost in the middle of the intersection when petitioners reached the west line of San Saba Street. Considering the location of the point of impact and the fact that Mr. DeWinne did not turn to the right before the collision, it appears that petitioners were driving in the south lane of Houston Street. Since respondent was traveling well out in San Saba Street, his car was visible to petitioners for a short time before either vehicle entered the intersection. In view of his comparatively low rate of speed and the fact that his car was in good condition, Mr. DeWinne certainly could have stopped promptly.

The jury may have concluded: (1) that under the circumstances a reasonably prudent person would not have directed his gaze exclusively to the right, but would also have looked directly ahead and possibly to the left, and would not have been looking at his speedometer as he approached or entered the intersection; and (2) that if Mr. DeWinne had maintained a proper lookout, the respondent's vehicle with its lights burning would have been in Mr. DeWinne's field...