Opinion
No. 4153.
March 29, 1932. Rehearing Denied April 21, 1932.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Action by Darnell Wonn, by next friend, against the Pennington Produce Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
The action was by the appellee to recover damages to his automobile and for personal injuries to him as a result of a collision with a truck owned by the appellant. The collision occurred on a public highway on April 12, 1930, after dark. The negligence alleged was (1) allowing the truck to stand on the highway after dark without a lighted taillight or lamp at the rear in violation of article 798, and section 9 of article 827a, Vernon's Ann. P. C., and (2) leaving the truck standing on the traveled portion of the public highway with less than 15 feet width opposite for free passage for other vehicles thereon in violation of section 10, article 827a.
The defendant answered by general denial and by answer pleading contributory negligence on the part of plaintiff in the way and manner of operating his automobile in many particulars of running at a greater rate of speed than 45 miles per hour; passing another automobile at a speed of more than 15 miles an hour; without keeping a proper lookout; running with defective headlights and defective brakes; not turning out to the left when he could have safely done so; running at a high rate of speed such as to be unable to timely stop or control the car in the case of need to do so.
The collision in suit occurred on April 12, 1930, at between 7:30 and 8 o'clock p. m., and on the public highway between Wolfe City and Greenville at a point about 6 miles north from Greenville. The darkness of the night had set in. An employee in the course of his employment was driving, upon the highway going south to Greenville, the appellant's Dodge truck weighing a ton and one-half, and loaded with 2,400 pounds of produce. He stopped the truck at a point on the highway about 6 miles out of Greenville because of a situation existing there. It appears that at this point on the highway a head-on collision had just previously occurred between a Ford truck and a Chevrolet automobile. The Ford truck, after the collision, had partly obstructed travel on the roadway. As a consequence several automobiles were stopped on the highway at the point of the wreck. There were collected on the west side of the highway "two or three cars headed south," and on the east side of the highway were "one or two cars headed north." Between "twenty and twenty-five people" were standing there looking at the wreck. The appellant's driver stopped the truck on the west side of the highway with a part of the truck resting "about half-way off the road, which left it half-way on the graveled portion of the road and half-way off the graveled portion on the dirt." There were two automobiles parked just ahead of the appellant's truck. A car going north and facing north was parked on the east side of the roadway just opposite the appellant's truck, and was resting partly on the hard surface of the road and partly on the shoulder or dirt portion of the roadway. Such was the situation on the ground when the appellee approached in his automobile, a Ford sedan. The appellee was driving, and he had three companions riding with him. Appellee was driving south, coming from the north. Commencing on a little hill north of the point where the appellant's truck was resting, and for some 150 yards south the road was slightly down grade. When the appellee reached a point some 10 yards distant from the appellant's truck, he quickly swerved his car to the right and applied the brakes in full force which caused his car to skid and forcibly strike the northwest corner of the truck. The truck was on the right of the road, and the appellee was driving his car on the right side. The force of the collision seriously injured the appellee and damaged his automobile. The other witnesses say the appellee stopped the car in the manner done when "thirty or thirty five feet" from the truck. The evidence as above stated is substantially without conflict.
According to the evidence of some of the witnesses, the appellee was driving his automobile at a speed between 30 and 35 miles an hour, while according to the evidence of other witnesses he was driving at a rate of speed between 50 and 60 miles an hour as he approached the point where the truck was standing. The appellee explained the situation, briefly stated, as follows: "I came over a slight hill and on my left I noticed a car which I thought was approaching me with headlights on. I slowed down just a little when I was within ten yards of the car and I noticed there was a truck facing the same way I was going. I noticed that the truck was parked. There were no lights on the truck at all and I did not see it until I was right on it. I was blinded quite a bit by the lights of the car facing me. I saw that I was unable to go between the car and the truck and in order to avoid running into the car or truck I turned to the right and tried to go into the ditch to keep from hitting the truck. I did not turn quite enough and caught the left side of my Ford car against the rear right corner of the truck. * * * I put on my brakes and probably skidded my car. I did not put on my brakes until within about ten yards of the truck and that was when I first saw the truck. At the time I was going between thirty and thirty-five miles an hour."
It was shown that the car on the east side of the road facing the way the appellee was driving had its headlights burning. The evidence is conflicting as to whether the rear light on appellant's truck was lighted. The driver of the truck said the truck had lost a tail-light and a reflector. According to the testimony of the witnesses, the distance between the appellant's truck and the car opposite was "room enough for a car to pass if the people had been out of the way." According to the affirmative evidence of another witness, "there was not a clear and unobstructed width of not less than fifteen feet on the main traveled portion of the highway opposite the standing truck." The traveled portion of the highway as constructed and paved was "about fourteen or sixteen feet wide."
The case was submitted to the jury on special issues as follows:
"Question 1: Do you find from a preponderance of the evidence that as the plaintiff approached the car referred to as the Pennington truck that the tail light on the Pennington truck was burning?" Answer: "NO."
"Question 2: If you have answered No to question No. 1 above, then do you find from a preponderance of the evidence that the failure of the tail light to be burning was the proximate cause of the plaintiff colliding with said truck?" Answer: "Yes."
"Question 3: Do you find from a preponderance of the evidence that when the driver of the Pennington truck stopped his truck at the time and upon the occasion in controversy that he left a space upon the main traveled portion of the highway reasonably sufficient for other vehicles to pass?" Answer: "No."
"Question 4: If you answered No to question No. 3 above, then was such failure on the part of the driver of the Pennington truck the proximate cause of the plaintiff striking said truck with his car?" Answer: "Yes."
"Question 5: Do you find from a preponderance of the evidence that as the plaintiff approached the place involved in the controversy that he was driving his car at a greater rate of speed than forty-five miles an hour?" Answer: "No."
"Question 6: If you answered Yes to the above question, then do you find from a preponderance of the evidence that such fact proximately caused or contributed to the collision with the Pennington truck?" Answer: "No."
"Question 7: Do you find from a preponderance of the evidence that upon the occasion in controversy that the plaintiff was driving his automobile at a rate of speed endangering life and limb?" Answer: "No."
"Question 8: If you answered Yes to the above question, then do you find from a preponderance of the evidence that such fact proximately caused or contributed to the collision and consequent injury of the plaintiff?" Answer: "No."
Special issue No. 5, requested by the defendant, and the answer thereto, are as follows: "Do you find and believe from a preponderance of the evidence that Darnell Wonn propelled the car at such a rate of speed that he could not stop the same within the radius covered by his own headlights?" Answer: "No."
In keeping with the verdict of the jury, the court entered judgment for the plaintiff for the amount of damages returned by the verdict of the jury.
There being evidence to support the jury findings, they are here adopted.
Seay, Seay, Malone Lipscomb, of Dallas, and Starnes McWhirter, of Greenville, for appellant.
Clark, Harrell Clark, of Greenville, and Burgess, Burgess, Chrestman Brundidge, of Dallas, for appellee.
The special issues 1 and 3, respectively, are made the subject-matter of error in presuming negligence as a matter of pure law, and in not requiring of the jury the finding of negligence vel non in the circumstances. The evidence affirmatively showed that the truck was equipped with and carried for use a tail-light, but is conflicting as to whether or not it was kept lighted while the truck was standing on the highway at the time of the injury in suit. The sole disputed fact was that of whether or not the light was kept burning while the truck was parked. Issue No. 1 required a finding by the jury only of whether or not the evidence established "that the tail light on the Pennington truck was burning." It is a clear violation of the terms of the penal statute not to have the light located at the rear of the motor vehicle, and carried for the purpose of a clearance lamp, kept lighted after sunset while such motor vehicle is upon the highway. Section 9, article 827a and article 798, Penal Code. It is manifest that the lights so required were intended for the guidance and safeguard and protection against injury of other travelers on the highway. The violation of a positive duty designed by statute for the safety of an individual, and the violation results in injury, constitutes negligence per se according to the well-settled rule in this state. Houston T. C. Ry. Co. v. Wilson, 60 Tex. 142; Texas P. Ry. Co. v. Baker (Tex.Com.App.) 215 S.W. 556; Hines v. Foreman (Tex.Com.App.) 243 S.W. 480; Estes v. Davis (Tex.Civ.App.) 28 S.W.2d 565. Therefore in the evidence there was no error in submitting to the jury for finding only the violation of the law, and that such violation was the proximate cause of the injury. Speers' Law of Special Issues, § 164, p. 213. The case of Horton v. Benson (Tex.Civ.App.) 266 S.W. 213; Id. (Tex.Com.App.) 277 S.W. 1050, is not a holding to the contrary of the rule. The case of Taber v. Smith (Tex.Civ.App.) 28 S.W.2d 722, involves quite a different state of facts. In that case the holding was that the proper issue and question for the jury was, not the existence only of the fact of violating the provisions of an express statute, but of negligence vel non in the circumstances in view of all the affirmative and uncontradicted evidence going to show that the violation of the law was justifiable or excusable.
As respects the second point, the objection is well taken. The issue as submitted was not a violation of the terms of the statute, but was rested upon negligence vel non of leaving a space open "reasonably sufficient for other vehicles to pass." In such circumstances it was required of the jury, in order to predicate liability, a finding of negligence or not under the circumstances. The setting aside of this finding, as must be done, we think, would not operate to reverse the judgment.
The points are presented that the evidence shows as a matter of pure law (1) no negligence on the part of the defendant, and (2) contributory negligence of the plaintiff. The defendant claims, and the evidence conclusively shows, that his presence as the point of injury was due to a previous wreck stopping for the time passage on the highway. Although he had stopped on the highway, yet the truck was being operated on the highway within the meaning of the law since the truck was only temporarily stopped within the intention to continue on the trip as soon as the way was cleared and made open for travel. Horton v. Benson (Tex.Civ.App.) 266 S.W. 213. In such situation the truck driver had ample time and opportunity to properly park the truck and observe the taillights. The evidence was connecting as to whether or not the tail-lights were kept burning during the time the truck was parked on the highway. The evidence in reference to this and the evidence opposed thereto, may involve an act of the affirmative violation of an express statute. Hence absolute liability would follow, resulting from the conclusively shown violation of the law in case of such violation being the proximate cause of the injury. It was for the jury, under the circumstances, to determine the proximate cause, and their verdict would have to be sustained as there is evidence to support the finding.
The main point arising in the evidence is that of whether or not the plaintitff was guilty of contributory negligence. The failure of the plaintiff to more timely see the objects on the road as he was approaching them may or may not have been excusable under the circumstances. The evidence in reference to this and the evidence opposed thereto may involve, it is believed, an issue for the jury. It may not reasonably be said that, as a matter of pure law, no care was taken to avoid, and no excuse offered by the plaintiff for colliding with, the defendant's unlighted truck left on the highway.
Complaint is made of refusal to give certain issues bearing upon negligence of the plaintiff. The issues as submitted covered the real points raised by the evidence, and there was no error in respect to the other requested issues.
There was requested to be submitted to the jury a special issue involving the failure of the plaintiff to comply with article 794, Penal Code, reading: "All operators of motor vehicles in passing each other on the public highways shall slow down their speed to fifteen miles per hour. Any person who violates this article shall be fined not to exceed one hundred dollars."
The answer must be, we think, that the article has no application to the facts. The appellant's truck was standing on the right side of the road. An automobile was standing parked on the left side of the road, opposite the truck, and facing the plaintiff. The plaintiff was driving on the right side of the road. The evidence is without contradiction that the plaintiff did not actually pass nor actually attempt to pass the automobile standing on the left side of the road. He was in fact approaching the standing automobile, but, as admittedly proven, turned his automobile to the right at a point not less than 30 feet before reaching the standing automobile or truck. If the plaintiff at the time he turned or swerved it to the right was in fact operating "at a rate of speed endangering life or limb" or "at such speed that he could not stop within the radius covered by his own headlights" or more "than forty-five miles per hour" than such issues were duly submitted to the jury and they passed upon the same.
It is urged that there was error in not submitting the requested issue of unavoidable accident. It is believed there was no issue of fact in that respect.
We have considered all the assignments of errors, and conclude that reversible error may not be predicated thereon.
The judgment is affirmed.
Without reviewing the facts, the writer is unable to agree with the majority of this court in the conclusion reached that the facts of this case do not call for the giving of the issue of contributory negligence requested by appellant involving a violation of article 794 of the Penal Code.
The writer is of the opinion that both the pleadings of the appellant and the evidence raised the issue, and, appellant having requested such issue to be submitted to the jury, it was reversible error for the court to refuse same.