Younger Bros. v. Marino

• Decision Date: 21 November 1946
• Docket Number: No. 11829.,11829.
• Parties: YOUNGER BROS., Inc., v. MARINO et al.
• Court: Texas Court of Appeals

198 S.W.2d 109

YOUNGER BROS., Inc., v. MARINO et al.

No. 11829.

Court of Civil Appeals of Texas. Galveston.

November 21, 1946.

Rehearing Denied December 12, 1946.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Suit by Mrs. Helen Marino, individually and as duly appointed legal guardian for her son, Joseph Archer Marino, against Younger Brothers, Inc., to recover for the death of her husband, who was killed in a truck collision. The Maryland Casualty Company intervened to recover amount of compensation benefits paid by it to Mrs. Helen Marino. From a judgment for plaintiffs, defendant appeals.

Judgment affirmed.

Bell, Dyche & Bell, Fulbright, Crooker, Freeman & Bates, and M. S. McCorquodale, all of Houston, for appellant.

Earl Cox, of Houston, for appellees.

GRAVES, Justice.

Mrs. Helen Marino brought suit, individually and as the duly appointed legal guardian for her son Joseph Archer Marino, in the district court of Harris County, Texas, against Younger Bros., Inc., for the death of her husband, Augustine Joseph Marino, who was killed instantly when the truck he was driving collided with a truck operated by an employee of Younger Bros., Inc. Mrs. Marino also sued for the use of plaintiff Joseph Marino, father of her husband. Maryland Casualty Company intervened, by virtue of the fact that it had paid Workmen's Compensation benefits to Mrs. Marino, as that company carried the Workmen's Compensation Insurance for Mr. Marino's employer.

Mrs. Marino individually recovered judgment in the sum of $30,355, and, as guardian for her minor son, recovered judgment in the sum of $5,000. Joseph Marino, the father, failed to recover. Maryland Casualty Company recovered judgment in the sum of $560. Younger Bros., Inc., appealed from such judgment.

Appellant's first two points of error insist that the evidence introduced in the trial, (1) failed absolutely to show whether loss of control of the appellant's truck was due to negligence on the part of its driver; or, if not to that full extent—which would have entitled it to an instructed verdict— then, (2), it was at least entitled to have the jury determine as a fact-issue whether such loss of control was complete, and whether its driver's negligence caused it, as was inquired about in its requested issues Nos. 1 to 5, inclusive, the submission of which to the jury the trial court refused.

Was the body of the evidence so characterized subject to one or the other of such infirmities? To determine that inquiry, this resume of the controlling features thereof, all of which appears to this court to have been from undisputed testimony, is at the outset thus set out:

Rufus Dillard, a passenger in the truck being operated by the deceased Marino, and the only eyewitness to the collision, testified:

That Marino was proceeding in a westerly direction toward Houston on the Beaumont-Houston Highway, at a speed of about 35 miles per hour, as it approached the place of the accident. That the Younger Bros. truck was approaching from the opposite direction, and that, when he first saw it, such truck was about a half mile down the road. That there were no vehicles between the two trucks. That this was about 10:00 o'clock at night. That the approaching truck was going pretty fast, about 40 miles an hour. That, when the approaching truck was about a block away, it commenced to zigzag across the road. That the approaching truck was going back and forth from one side of the road to the other. That when the approaching truck began to go back and forth from one side of the road to the other, and when it was a block away, Mr. Marino said: "Look at that truck coming yonder," and began to pull off on the righthand side of the road, and put on his brakes; that he pulled off the side of the road gradually. That he applied his brakes gradually; began to slow up gradually, and pulled off to the right at the same time. That Mr. Marino got the truck completely off the highway on to the shoulder, as much as three feet off of the pavement to the right. That it was a Ford truck, with a van type trailer. That, when the oncoming truck was a hundred feet from them it got over on the wrong side of the road and headed right straight for them; it didn't zigzag any more, it headed straight for them. That after it went from one side of the road to the other side a number of times, it then went over, clear over on the lefthand shoulder, when it was about 100 feet from them, and then came straight toward them. That there was a square, head-on collision, and that at the time of the collision the truck Mr. Marino was driving "had done come to a stop; almost completely stopped." That Mr. Marino had stopped almost completely, that his truck was just barely moving. That at the time of the collision the other truck was going about 35 miles per hour, maybe faster. That, as the oncoming truck came closer to him, it seemed to go faster than it did down the highway. That the oncoming truck never seemed to slow up a bit.

C. A. Weirich, a deputy sheriff, who investigated the accident and who arrived soon thereafter and before the vehicles had been moved, testified:

That, when he got to the scene of the wreck, both trucks were on the north side of the highway, off of the pavement. That the tractors, or front ends of the trucks, were approximately 20 feet from the north edge of the concrete. That there was no broken glass, wreckage, or debris of any kind, on the concrete itself; it was on the shoulder. That such wreckage was found on the shoulder on the north side of the highway. That he found tracks on the concrete, and made measurements of such tracks. That he found brake-marks or skid-marks leading to the back of the van type (Marino) truck, such skid-marks being right at the edge of the highway, right on the edge of the pavement, about 4 or 5 feet long, "just where they skidded and made a short turn." That he was present when photographs were taken, and the trucks and conditions were the same as they were when he got there.

J. C. Rockwell, another deputy sheriff, who went to the scene of the accident immediately thereafter for the purpose of making an investigation, testified:

That he found the two wrecked trucks on the north side of the highway next to the wire fence on the side of the road. That they were on the shoulder of the highway completely off the pavement, no part of either truck being on the concrete. That he found that the flat bedded truck (the Younger Bros. truck) had come from the southern part of the highway on its side and traveled approximately 100 feet on the wrong side of the highway and came completely off of the highway and was on the northerly part of the highway when the collision occurred, from the indications of the tracks at the edge of the highway and the dirt that was torn up at the scene.

The witness Jesse Cordell, who operated the Cordell Brick Company, in front of whose plant the accident occurred, testified:

That he was home in bed when he heard the impact of the two trucks. That it sounded like railroad box-cars hitting together. That this was about 10:00 o'clock at night. That he got up and went out to the scene of the accident. That he found the trucks on the north side of the highway, about 50 or 100 feet down the highway east of where his office was located. That the front end of the van type truck (the Marino truck) was 20 feet or more from the north edge of the concrete in the ditch. That both vehicles were entirely off the concrete.

On such evidence, the jury, in answer to special issues submitted by the court, in material substance found:

"That the driver of the Younger Bros. truck failed to travel on the right-hand side of the highway just before and at the time of the collision, which was a proximate cause of such collision; that such driver failed to travel on the right-hand side of the highway when the road on the left-hand side was not clear and unobstructed for a distance of 50 yards ahead just before and at the time of the collision, which was a proximate cause of the collision that the driver of such truck, just before and at the time of the collision, operated such truck on its left-hand side of the center line of the highway, which was negligence and a proximate cause of the collision; that the driver of such truck failed to keep a proper lookout for vehicles on the highway ahead of him just before and at the time of the collision, which was a proximate cause of the collision; that the driver of such truck was operating the same at a greater rate of speed than a person of ordinary prudence would have operated the same under the same or similar circumstances just prior to and at the time of the collision, which was a proximate cause of collision; that the driver of such truck failed to have the same under reasonable control as he approached the place of collision, which was a proximate cause of the collision; that the driver of the truck failed to slacken the speed of such truck as it approached the Beverage truck, which was negligence and a proximate cause of the collision; that the collision in question was not the result of an unavoidable accident; and that the driver of the Younger Bros. truck was not acting under an emergency immediately before the collision in question.

"The jury further found that the deceased Augustine Joseph Marino did not fail to keep a proper lookout; that he was not driving at a dangerous rate of speed; that it was not negligence upon his part to fail to sound his horn; that he was not negligent in failing to apply his brakes to the fullest extent possible, and at the same time drive completely off of the pavement."

This court, upon careful review of the statement of facts, is unable to so appraise the evidence as does appellant, or to differ either with the trial court's conclusion that the issues so submitted to the jury embodied the material ones of fact involved in the cause, or with its further...