Bardwell v. Anderson

325 S.W.2d 929, 1959 Tex. App. LEXIS 2533

• Court: Court of Appeals of Texas
• Decided: May 7, 1959
• Docket: 13199
• Status: Published

Opinions

BELL, Chief Justice.

Appellee, T. L. Anderson, recovered judgment against appellant, J. F. Bardwell, Jr., for $11,604.10. The damages assessed were those resulting from injuries received in an automobile collision by Mrs. Anderson, appellee’s wife. The collision occurred at the intersection of 14th Street and Texas Avenue in Texas City on May 31, 1956, shortly after 5 o’clock in the afternoon. It appears that the appellant was driving his automobile north on 14th Street and Mrs. Anderson was driving her automobile east on Texas Avenue. A Mr, Evans was driving his automobile west on Texas Avenue. Appellant’s automobile hit the left rear fender of the Evans automobile; Evans lost control of his automobile and it crossed the center of Texas Avenue into the path of Mrs. Anderson’s automobile and collided head-on with Mrs. Anderson’s automobile. Appellee sued both Evans and appellant. At the conclusion of the testimony, appellee took a non-suit as to Evans, as he had a right .to do, since appellant had asked 'for no affirmative relief against Evans. The case was submitted to a jury, which convicted appellant of various acts of negligence which were found to be proximate causes of the collision. It is unnecessary to notice them as these findings are not challenged here. The jury convicted Mrs. Anderson of failure to keep a proper lookout and failure to drive her automobile to her right from the path it was traveling. Each of said acts was found to be a proximate cause of the collision. Appellant filed a motion for judgment on the verdict, asserting he was entitled to judgment because of the findings of contributory negligence against Mrs. Anderson. This motion was overruled. Appel-lee filed a motion asking the court to disregard the answer of the jury to Special Issue No. 14 which found the failure of Mrs. Anderson to keep a proper lookout was a proximate cause of the collision, and also the answer of the jury to Special Issue No. 16 which found that the failure of Mrs. Anderson to drive her automobile to her right was a proximate cause of the collision, because each answer was wholly without support in the evidence; and asking that, after disregarding such answers, that the court render judgment for appellee. The court granted this motion; disregarded the answers to these two Issues; and rendered the judgment here appealed from in favor of appellee.

Here appellant assigns four Points of Error, but they really present only the questions of whether the court erred in holding the jury’s answers to Special Issues 14 and 16 were wholly without support in the evidence.

Appellee, in case it should be held by this Court that there was evidence to support the jury findings to the above two Issues, assigns as Counter-Points that the above answers were so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust, and that the jury was guilty of misconduct, and, therefore, if the judgment is not affirmed it should not be reversed and rendered in favor of appel-1ant, but should be reversed and remanded for another trial.

We will first discuss whether the trial court was in error in holding there was no evidence to support the jury’s answers to Special Issues Nos. 14 and 16.

In determining whether there was any evidence to support the jury’s answers to certain Special Issues, we must consider only that evidence, and reasonable inferences to be drawn therefrom, that are favorable to the answers of the jury to those Issues, and must disregard that which militates against such answers. If there is evidence of probative value that will support any one of the findings of proximate cause, the trial court was in error in rendering judgment for appellee. Biggers v. Continental Bus System, Inc., Tex., 303 S.W.2d 359; Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497; Whiteman v. Harris, Tex.Civ.App., 123 S.W.2d 699, writ ref.; Warren v. Schawe, Tex.Civ.App., 163 S.W.2d 415, writ ref.; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682.

We must review the testimony to determine whether there is any evidence of probative value to support either of the jury’s conclusions that Mrs. Anderson’s failure to keep a proper lookout and her failure to drive to her right were each a proximate cause of the collision.

Mr. Bardwell testified that he was proceeding north on 14th Street. As he came to Texas Avenue he stopped at a stop sign and remained about five minutes, to allow traffic on Texas Avenue to clear as the traffic was heavy. He intended to enter Texas Avenue, make a left turn, and proceed west on Texas Avenue. Just as he entered Texas Avenue he looked to his right and then to his left. To his right, proceeding in a westerly direction he saw Mr. Evans’ automobile in the center lane about 50 yards east of the intersection. To his left he saw Mrs. Anderson’s automobile about 75 yards, more or less, to the west of the intersection. It might here be noted that Texas Avenue has six lanes, the north and south lanes being usually used for parking vehicles and two lanes on each side of the center line being used for vehicular traffic. He proceeded across Texas Avenue and in the meantime the Evans car had changed to the lane nearest the center. He did not see the Evans car from the time he first observed it until the collision. The front of his car hit the left rear fender of Mr. Evans’ car. Mr. Evans lost control of his car; crossed over the center line of Texas Avenue and proceeded west in the lane occupied by Mrs. Anderson. Evans’ car collided head-on with Mrs. Anderson’s vehicle. The point of collision between the Evans and Anderson vehicles was 25 to 30 yards west of the west side of 14th Street. Evans’ vehicle traveled 20 or 30 yards after it was hit by Bardwell’s vehicle. There were no vehicles ahead of Mrs. Anderson. If there were any in back of her, they were a substantial distance back. The time between the two collisions was a split second. The second collision happened just in a flash after the first one. The Bardwell vehicle spun completely around and ended up just west of the west line of 14th Street with its front wheels against the south curb of Texas Avenue.

A Mr. Pierce testified he entered Texas Avenue at 12th Street behind the Evans car and proceeded west. Evans was in the center lane, but changed to the lane next to the center line. Pierce passed him and at the time of the first collision the front of Evans’ vehicle was about even with the rear wheels of Pierce’s vehicle. Evans was traveling from 22 to 25 miles per hour. At another point he said Evans was going about 20 miles per hour. Bardwell was proceeding very slowly. The point of collision with Bardwell was when Evans was nearly through the 14th Street intersection. The point of collision between the Evans and Anderson vehicles was about 45 feet west of the west line of 14th Street. There was a second or two between the two collisions. The collision between the Anderson and Evans vehicles was head-on in the lane of travel of Mrs. Anderson. Bardwell’s car spun around 180 degrees and ended up on the south side of Texas Avenue. Mrs. Anderson was going about 20 miles per hour at the time of the second collision. Traffic was pretty heavy. There was 3 or 4 cars ahead of him. Bardwell, from the time the witness first saw him picked up his speed from 2 or 3 miles per hour to IS or 18 miles per hour.

Mr. Evans testified he was driving from 25 to 30 miles per hour as he approached the intersection. He had nearly cleared the intersection when Bardwell’s automobile hit his. He was driving 20 to 25 miles per hour when Bardwell’s car hit his. Between the time of the first collision and the second one was a few seconds, or a second, or it occurred just in a flash. He did not know how fast his car was moving when it collided with Mrs. Anderson’s. When Bard-well’s car came to rest on the south side of Texas Avenue, its front wheels were against the south curb. Evans, going the speed he was, could have stopped his car in 25 feet. He lost control of his car. His collision with Mrs. Anderson was 20 to 30 feet west of the west line of 14th Street. After the collision with Bardwell’s car, he traveled about 40 feet before colliding with Mrs. Anderson.

Mrs. Anderson testified she was proceeding east on Texas Avenue at a speed of from 25 to 30 miles per hour. She was in the lane next to the center of the street. She saw Bardwell when he was in the middle lane. She did not see the collision between Bardwell and Evans. The time between the two collisions was two or three seconds — just a flash. Her car was still moving when it collided with Evans’ car, but she doesn’t know at what speed. There was heavy traffic. She did not know how far she was from the intersection when she saw Bardwell. She never saw Evans before the collision with Bardwell. She did not see Bardwell’s car turn 180 degrees. She at no time turned her car to her right.

Viewing the evidence most favorably in support of the jury’s finding and discarding contrary evidence and inferences, we find Mrs. Anderson, at the time Bardwell was commencing his move onto Texas Avenue, a distance of 225 feet or more back of the intersection because Bardwell, who gave the only testimony, testified she was 75 yards, more or less, back from the intersection. The south half of Texas Avenue is 30 feet wide.

When the Bardwell car commenced its movement into Texas Avenue, Mrs. Anderson was traveling at a speed of 25 miles per hour. She would be traveling 36.66 feet per second. She could have been farther back or less, because Bardwell said she was back 75 yards, more or less. The specific yardage stated is all that can be tied to. Bardwell started' his movement so that when he was entering Texas Avenue he was going two to three miles per hour and speeded up to 15 or 18 miles per hour, the speed at which he was going when his car hit Evans’ car. His average speed over the south half of Texas Avenue could have been, if we take the two miles per hour and 15 miles per hour figures, as the jury had a right to do, 8½ miles per hour. At this speed, it would have taken him 31/⅞ seconds to reach the point of collision. In the meantime, if Mrs. Anderson continued at 25 miles per hour, she would have traveled 128.31 feet, leaving her 96.69 feet from the intersection. If she had been looking, she would have seen the collision. Assume the time for her to react is the average time of %ths of a second, she would have traveled 27½ feet, so at the time she would commence taking action she would be 69.19 feet from the intersection. In the same period of time of J4ths of a second, Evans’ car would have proceeded, at 20 miles per hour, a distance of 22 feet, so that the two automobiles would be 47 feet apart. Mrs. Anderson, so the jury might have concluded, could have turned her automobile to the right into the middle lane. She would then have had 69.19 feet in which to stop her vehicle before it reached the intersection, and 47 feet before reaching the point of collision. There is no evidence as to how many feet would be required in which to stop her car, but Evans testified that at 20 miles per hour he could stop his car in 25 feet. Evans testified the point of collision between the Evans and Anderson cars was 20 to 25 feet west of the intersection. The jury had a right to accept this testimony and conclude that even had Mrs. Anderson not driven to the right she would have had 47 feet before the point of collision in which to stop. Too, the jury could have concluded that Mrs. Anderson’s car was almost stopped at the time of the collision. She said her car was still moving, but she did not know at what speed. Pierce did testify she was traveling 20 miles per hour, but the jury could have concluded this could not be in the light of the relatively light damage done to the two cars, as shown by the pictures in evidence. It is true that Bardwell’s car spun around and ended up with its front wheels against the south curb. It is not shown how far west of the intersection, but the diagram in evidence shows it to be some feet nearer the intersection than Mrs. Anderson’s car after the collision. The length of Bardwell’s car is not shown, but it was certainly more than 10 feet long, so it would have occupied part of the middle lane and Mrs. Anderson could not have continued across the intersection. However, the jury could have concluded had she turned into the middle lane when the first collision occurred and had put on her brakes, that she could have stopped so as to have avoided the collision.

All of the foregoing is based on the assumption that the moment of the collision between the Bardwell car and the Evans car was the first moment of danger. However, the jury could have well concluded that the moment of danger was before the impact, in which case a longer period would have been available to Mrs. Anderson in which she could have taken steps to avoid being involved in a possible collision. The jury might have concluded that had she been keeping a lookout she would have seen Bardwell crossing the intersection, and increasing his speed to 15 miles per hour. She would have seen Evans proceeding at 25 miles per hour, and changing from the middle lane to the lane nearest the center of the street. She, as a reasonable person, should have known that there would probably be a collision if Bardwell didn’t stop. If he did stop, he would be in her lane of travel, and she would either have to stop or turn to the right to go around him. The jury could have concluded that when the cars were 11 feet apart there was danger. This 11 feet is arrived at by taking Bard-well’s speed of 15 miles per hour. He would be traveling 22 feet per second. When he was 11 feet from the point of impact, it should have been evident that Bard-well must either stop, which would have been difficult, in which case he would be in her lane of traffic, or he would collide with the Evans car. If Mrs. Anderson had at that time begun to stop, she would have had an additional 18.33 feet in which to stop and in which to turn her car into the center lane, or, a total distance of 67.33 feet.

We have, therefore, concluded there was evidence of probative value to support the jury’s findings that the failure to keep a proper lookout and failure to turn her car to the right were proximate causes of the collision, and the trial court was in error in disregarding the jury’s answers to these issues and rendering judgment for the appellee.

The question now arises as to whether the jury’s answers to these issues are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In determining this matter, we must consider the whole of the record, both that which is favorable to the verdict and that which militates against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234; Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1. We may not substitute our judgment for that of the jury merely because we might, on the evidence, have reached a different conclusion. We may not set aside the jury findings unless we are impressed from a consideration of all the testimony that such findings are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, manifestly unjust, or shocking to the conscience. Continental Bus System, Inc. v. Biggers, supra.

We have stated all of the material evidence on the issues. We have studied the whole record very carefully, and we are unable to say that the jury’s findings of proximate cause are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong. We are rather impressed with the conclusion that the preponderance of the evidence supports the jury’s conclusions. We feel that the analysis made above and the conclusion reached is the most valid explanation of the causes of the collision as reflected by the whole of the evidence.

Appellee by further cross-point contends the jury was guilty of misconduct. The misconduct alleged was an agreement among the members of the jury to be bound by a majority vote.

There are no findings of fact by the trial court. If there is evidence of probative value in the record to support the action of the trial court in overruling the motion for new trial, we cannot disturb that action.

We need not review the testimony. It suffices to say there was evidence to show an agreement was made, before the issues were answered, to be bound by a majority vote and that this - agreement was carried out. Had this been all of the testimony, there would have been jury misconduct. Tian v. Warren, Tex.Civ.App., 271 S.W.2d 453, writ ref., n. r. e. However, this was not all of the testimony. There was testimony from several jurors that there was no such agreement. There was testimony that after some of the issues were discussed and no agreement was reached, the jury took a preliminary vote and then passed on to other issues. After other issues were answered, they came back to the issues previously answered, but not agreed upon, and such issues were discussed until such time as there was unanimity on each issue. While the jurors who testified there was an agreement to be bound by the majority testified they agreed to the issues, they say they did so only because they thought they were bound by the majority rule. The result of the testimony is that there was a conflict. There was evidence to show an advance agreement to be bound by a majority vote and a carrying out of that agreement. There is, to the contrary, testimony that no such agreement was made, but there was a preliminary vote to obtain the feeling of the jury on certain issues, and subsequently the issues were further discussed and were unanimously agreed upon. Too, the jurors were asked when the verdict was returned into court if it was their verdict and they answered it was.

The evidence must be viewed most favorably to the order of the court overruling the motion for new trial. State Teachers’ Mutual Life Ins. Co. v. Mims, Tex.Civ.App., 74 S.W.2d 549, writ ref. The court here could have ruled either way. He presumably found misconduct did not occur. He, as the trier of the facts, is allowed great latitude in passing on the credibility of the witness and in weighing the testimony. St. Louis, B. & M. R. Co. v. Cole, Tex.Com.App., 14 S.W.2d 1024.

There being evidence that at the most a preliminary vote was taken and that later, after further discussion of certain issues, the minority came over to the majority, there being no advance agreement that the majority vote would control, there was no misconduct. Boddeker v. Ol-schewske, Tex.Com.App., 127 Tex. 598, 94 S.W.2d 730. It is no answer for the jurors to say they felt bound by an alleged agreement to follow the majority. This is but inquiring into the mental processes of the jurors, and this is not permissible. Western Cotton Oil Co. v. Mayes, Tex.Civ.App., 245 S.W.2d 280, no writ history.

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.