Younger Bros., Inc. v. Myers, A-7090

• Court: Supreme Court of Texas
• Writing for the Court: NORVELL
• Citation: 159 Tex. 585,324 S.W.2d 546
• Parties: YOUNGER BROTHERS, INC., et al., Petitioners, v. Mary E. MYERS et al., Respondents.
• Docket Number: No. A-7090,A-7090
• Decision Date: 06 May 1959

Page 546

324 S.W.2d 546 159 Tex. 585 YOUNGER BROTHERS, INC., et al., Petitioners,
v.
Mary E. MYERS et al., Respondents. No. A-7090. Supreme Court of Texas. May 6, 1959.
Rehearing Denied June 17, 1959.

[159 Tex. 586]

Page 548

Keith, Mehaffy, McNicholas & Weber, Dewey J. Gonsoulin, James W. Mehaffy, Beaumont, for petitioners.

King, Sharfstein & Rienstra, Beaumont, for North American Van Lines, Inc. and others.

Baker & Vaughan, Port Arthur, Marcus, Weller & Evans, Beaumont, for respondents.

NORVELL, Justice.

A take nothing judgment in favor of defendants Younger Brothers, Inc. and William Jacob Mullis was reversed by the Court of Civil Appeals because of improper argument by defendants' counsel. Myers v. Younger Brothers, Inc., 316 S.W.2d 929, loc. cit. 939-942. Being of the tentative opinion that a reversible error could not be predicated upon such argument in the absence of a timely objection thereto, we granted writ of error. Further consideration of the case has convinced us of the correctness of our tentative opinion. We have also reviewed the points asserted by Mary E. Myers et al. in their brief filed in the Court of Civil Appeals and finding none which would vitiate the judgment of the trial court, the order of the Court of Civil Appeals reversing such judgment is accordingly reversed and the judgment of the trial court is affirmed.

This lawsuit grew out of an automobile-truck collision which occurred on U. S. Highway No. 87 between Orange and Port Arthur, Texas on August 16, 1956. Shortly before the collision, the Younger Brothers tank truck was travelling in a southerly direction along a local way known as the Pure-Atlantic Road. Upon approaching the intersection of the Pure-Atlantic Road with Highway No. 87 Mullis, the driver of the truck, attempted to negotiate a left-hand turn into Highway No. 87 with the intention of travelling thereon in an easterly direction. At this juncture, however, his truck stalled, completely blocking said [159 Tex. 587] Highway No. 87. A North American Van Lines truck shortly thereafter pulled onto the south shoulder of the highway along the right-side of the cab of the Younger Brothers truck. The North American vehicle was equipped with flashing directional lights which were set in operation and were operating at the time of the collision which took place about five minutes after the truck had stalled. The time was around 7:15 or 7:20 in the evening and there was some dispute as to the degree of the darkness of the night. Mullis put out no flares or warning signals to apprise those in approaching automobiles of the position of his truck, but during the five minute interval mentioned he was occupied in either trying to stop traffic coming from Port Arthur or in unsuccessfully attempting to hook a chain onto the stalled truck so that it could be towed off the highway by the North American truck. Just before the collision occurred Mullis waved his arms and threw his hat in the air in an effort to stop the Myers car.

The automobile driven by H. J. Myers was travelling along the highway in a westerly direction toward Port Arthur at approximately forty miles per hour when it ran into the Younger tank truck. Myers was killed and his wife and children seriously injured.

The jury found that Mullis, the Younger Brothers driver, was not negligent in failing to put out warning signals or flares, nor in deviating from the paved portion of the Pure-Atlantic Road in making his entry into Highway No. 87; that he was faced with an emergency caused by the sudden stopping of his truck, and was not negligent in connection therewith.

As to Myers, the jury found that he was guilty of contributory negligence in that he

Page 549

failed to keep a proper lookout. Also in connection with the flashing lights of the North American truck, the jury found that Myers saw these lights and was thereafter contributorily negligent in failing to slacken the speed of his vehicle; in failing to stop the automobile, and in failing to turn his car to his right, that is, to the north side of the Younger truck.

It appears that the State Highway Patrol, the Jefferson County Sheriff's office and the District Attorney either conducted or participated in an investigation of the collision shortly after it occurred. While there was objection and considerable agrument over questions propounded to Mullis, inquiring if the State Highway Patrol and the State of Texas had absolved him [159 Tex. 588] of all responsibility in connection with the collision, the following testimony by Mullis was received without objection:

'q. I will ask you this: Did the District...