Mercer was under a duty to keep a proper lookout for vehicles ahead of him on U.S. Highway 59. His failure to see the Meinen car until after he applied his brakes and started sliding (or until he hit the Meinen car, as he testified at one point) constitutes negligence as a matter of law. Hoey v. Solt, supra; Musslewhite v. Gillette, 258 S.W.2d 104 (Tex.Civ.App. 1953, n. w. h.); Lackey v. Gulf, C. S. F. Ry. Co., 225 S.W.2d 630 (Tex.Civ.App. 1949, n. w. h.); Standard Paving Co. v. Webb, 118 S.W.2d 456 (Tex.Civ.App. 1938, n. w. h.); Schawe v. Leyendecker, 269 S.W. 864 (Tex.Civ.App. 1925, n. w. h.). Our conclusion that Mercer's negligence in failing to keep a proper lookout was a proximate cause of the collision in question is not affected by his testimony that the highway was slippery on the occasion in question.
In overruling her motion for an instructed verdict. Appellant relies upon the cases of Wichita Valley Ry. Co. v. Fite (Ct.Civ.App.), 78 S.W.2d 714, N.W.H., and Standard Paving Co. v. Webb (Ct.Civ.App.), 118 S.W.2d 456, N.W.H., to support the theory that the appellee was guilty of negligence as a matter of law. The cases are not in point.
Kersey v. Swidler, Tex.Civ.App., 223 S.W.2d 242, writ dism., and authorities cited. See also Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Rollin v. Condra Funeral Home, Tex.Civ.App.1959, 321 S.W.2d 108; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456. In view of our holding, we think it unnecessary to consider appellants' other Points of Error.
That case is distinguishable from this in that there the evidence did not show that the car which ran into a truck parked partly on the pavement at night without lights or warning signal was itself equipped with properly functioning headlamps. Standard Paving Company v. Webb, 118 S.W.2d 456, Fort Worth Civil Appeals, is similarly distinguishable in that the plaintiff car was not equipped with headlights as required by law and by the further fact that plaintiff ignored flares and easily discernible warning signs. Hoey v. Solt, 236 S.W.2d 244, San Antonio Civil Appeals, was a daytime rear end collision where the front car was stopped at a traffic signal and the court held the driver of the car behind to be negligent as a matter of law in crashing into the first car. The fact that the driver was watching the car to his right was no excuse. Obviously this case is of no help here.
To do so would strongly indicate some degree of negligence on his part. Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456. For the reasons stated appellants' points of error are overruled and the judgment of the trial court is affirmed.
It is settled that whether there is negligence is a question of law when reasonable minds can come to but one conclusion; and where the conclusion is inescapable that the injuried party was guilty of negligence proximately causing his injuries there is no issue for the jury. Gulf, C. S. F. Ry. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; Jones v. Sunshine Grocery Market, Tex.Civ.App., 236 S.W. 614; Burnett v. Ft. Worth Light Power Co., 102 Tex. 31, 112 S.W. 1040, 19 L.R.A.N.S. 504; Cross v. Wichita Falls S. R. Co., Tex.Civ.App., 140 S.W. 567; Cisco N.E. Ry. Co. v. McCharen, Tex.Civ.App., 118 S.W.2d 844; International G. N. R. Co. v. Edwards, 100 Tex. 22, 92 S.W. 106; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Texas Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456. The basis for the holdings in such cases appears to be that the injured parties took no care for their own safety and made no effort to avoid the happenings resulting in their injuries. The general rule, however, is that whether there is negligence is a question of fact. Lone Star Gas Co. v. Fouche, Tex.Civ.App., 190 S.W.2d 501, writ refused w. m.; Swiff v. Michaelis, Tex.Civ.App., 110 S.W.2d 933, writ dismissed; Coleman v. West, Tex.Civ.App., 116 S.W.2d 870; McCullough Box Crate Co. v. Lies, Tex.Civ.App., 162 S.W.2d 1055, writ refused w. m.; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715; Humble Oil Refining Co. v. Ooley, Tex.Civ.App., 46 S.W.2d 1038, writ dismissed; Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308, writ refused n. r. e.; Oil City Iron Works v. Stephens, Tex.Civ.App., 182 S.W.2d 370; Horton v. Benson, Tex.Com.App., 277 S.W. 1050; Texas N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683, writ refused; Texas Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d
After making said admission, Nickels offered no excuse whatever for continuing to drive on the highway with these defective and inadequate headlights. It follows, therefore, that plaintiffs were guilty of negligence as a matter of law, which bars recovery if said negligence contributed to cause the collision. Fredrick v. Gay's Express, Inc., 112 Vt. 349, 24 A.2d 349; Buescher v. Ellenberger, Ohio App., 34 N.E.2d 1013; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456; Millspaugh v. Alert Transfer Storage Co., 145 Wash. 111, 259 P. 22. After considering the evidence presented by the record in this case, we believe there is such connection between plaintiffs' failure to comply with the requirement of the rule of the Public Service Commission and the accident itself as to render plaintiffs' negligence an active and concurring cause of the collision.
The sun was shining and if the child was actually on the shoulder when Phillips arrived at the place where Mrs. Ford's testimony located the child then Phillips ought in the exercise of due care to have seen the child and have avoided the child if he had been keeping the kind of lookout required of him. A failure to see a person in plain view as the motorist approaches the place where that person is shows a breach of the duty to keep a lookout. In addition to the decisions cited, see: Esparza v. El Paso, Tex.Civ.App., 296 S.W. 979; Texas Consol. Theaters v. Mauldin, Tex.Civ.App., 152 S.W.2d 930; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456. Regarding circumstantial proof, see especially D'Ambrosia v. Brest, 302 Mass. 316, 19 N.E.2d 53. The jury were not required to believe Phillips' statement that he looked and that he did not see the child; the circumstance mentioned is affirmative proof that he did not look. (c) The question then, is whether the child remained upon the shoulder of the road at or near the place where Mrs. Ford saw him playing.
Plaintiffs' motion for judgment should have been granted. LeMay v. Young, Tex.Civ.App., 217 S.W.2d 862; Standard Paving Co. v. Webb, Tex.Civ. App., 118 S.W.2d 456; Moss v. Koetter, Tex.Civ.App., 249 S.W. 259; Schawe v. Leyendecker, Tex.Civ.App., 269 S.W. 864. It is unnecessary to notice other matters mentioned in the briefs.
court on the matters so plead by the appellee as constituting his cause of action, inclusive of a finding that the stated acts of negligence against the Buick driver had constituted a proximate cause of the collision itself. It is not the duty of this Court to further detail the evidence — especially since there was none to the contrary, and since, under our authorities, both the question as to whether there had been such negligence in the driving of the Buick, and whether or not that negligence had been the proximate cause of the collision with the appellee's Ford were, in the circumstances here appearing, questions of law. Burton v. Billingsly, Tex. Civ. App. 129 S.W.2d 439, at page 442, w/e ref.; Wichita Valley Ry. Co. v. Fite, Tex. Civ. App. 78 S.W.2d 714; Texas-Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Koock v. Goodnight, Tex. Civ. App. 71 S.W.2d 927, err. ref.; Sanchez v. San Antonio A. P. Ry. Co., 88 Tex. 117, 30 S.W. 431; Standard Paving Co. v. Webb, Tex. Civ. App. 118 S.W.2d 456, at page 458. In the stated conditions, it is clear that no question of whether or not such collision was the result of an unavoidable accident was raised by the testimony.