Bretz v. Villalva

469 S.W.2d 231
CourtCourt of Appeals of Texas
DecidedJune 16, 1971
DocketNo. 6139
StatusPublished

This text of 469 S.W.2d 231 (Bretz v. Villalva) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bretz v. Villalva, 469 S.W.2d 231 (Tex. Ct. App. 1971).

Opinion

OPINION

PRESLAR, Justice.

This is an automobile intersection collision case in which the Court rendered a take-nothing judgment based on answers to special issues found by a Jury. The Defendant was found guilty of several acts of negligence proximately causing the collision, and the Plaintiff was found guilty of an act of negligence in failing to timely apply brakes which was a proximate cause of the collision. We are of the opinion that the judgment should be affirmed.

Appellant assigns four points of error. Point number one is that the trial Court erred in submitting special issues on failure of Appellant to make timely application of her brakes and related proximate cause. This being a contention that the Court erred in submitting the issue because of a lack of evidence, it must be reviewed under the “no evidence” rule, rather than what is commonly called the “insufficient evidence” rule. Blakely v. Howard, 387 S.W.2d 96 (Tex.Civ.App.Dallas, 1965, ref. n. r. e.); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). To sustain the point, the reviewing Court must find that there is no evidence to support the issue. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961).

The Plaintiff was on the favored street and the Defendant entered the intersection from her right on a street controlled by a yield sign. The Defendant testified that he stopped at the yield sign, moved up to where he could see both ways, looked both ways, and then moved into the intersection. His speed was 5 miles per hour. The Plaintiff said she first saw the Defendant when he was one car length from the intersection and that he was not stopped, but was moving, that she watched him until the collision, that she slackened her speed when she saw the Defendant, did not apply her brakes when she first saw him, but had her foot ready, thought he would stop, assumed he would stop, and when she realized he was not going to stop, then she applied her brakes and turned to the left, this was as they both entered the intersection, and they both entered the intersection at the same time. The Plaintiff testified:

“Q. All right. Now, as it rolled on into that intersection, Mrs. Bretz, you [233]*233kept coming right on up this way, didn’t you?
“A. One lane, yes.
‡ ⅜ ⅝ ⅝ ⅝ sjc
“Q. As he rolled on into that intersection and got to this point, you were still watching his car, weren’t you ?
“A. Yes, sir.
⅝ ⅝ ⅝ ⅜ ⅝ 3⅜⅞
“Q. All right. Now, tell me just exactly what you did just before this accident by way of looking down the road; what did you do?
“A. I was looking straight ahead, and when I got close to the intersection, I looked and saw this car coming and expected him to stop, and when I realized that he was not going to stop, then I applied the brakes and turned to the left.
⅜ ⅜ i}C ‡ i{c
“Q. Now, you did not apply your brakes when you first saw the car coming, did you?
“A. No, but as I say, I kept my foot ready to.
⅝ Jjc ⅜ ijc ⅜ ⅜
“Q. And you had your foot on the brakes, and you were riding the brake up to a point, and then you finally decided to step on the brake, didn’t you ?
“A. Yes, sir.
“Q. Then after a short time elapsed and after you decided that he was not going to stop, you put your brakes on.
“A. Yes.
⅝ ifc ⅜ ⅜ 3j£ ⅜

The speed of the Plaintiff was 25 miles per hour. The cars each moved 20 feet into the intersection from their respective curb lines and collided in the middle of the intersection, according to the investigating officer. The right front of Plaintiff’s car struck the Defendant’s pickup just behind or to the rear of the door. A seventeen year old boy testified that he observed what happened from the porch of a nearby house, and that he saw the Defendant approach the yield sign, come to a complete stop, behind the yield sign some 4 feet, and then proceed into the intersection, saw the Plaintiff coming “pretty fast”, she hit the brakes, the wheels skidded, made a noise, and then the car hit the pickup; the pickup was hit just behind the cab, and the collision occurred in the middle of the intersection. Viewing this evidence, under the announced rule, we conclude there is some evidence of probative force to warrant the submission of the question of whether the Plaintiff “failed to apply her brakes at a time that a person of ordinary prudence, in the exercise of ordinary care, acting under the same or similar circumstances, would have applied her brakes?” We also conclude that there is evidence of probative force to support the Jury finding on the issue. In reaching this conclusion, we have viewed the evidence in the light most favorable in support of the Jury’s answer to the issue, and considered only the evidence and inferences which support such answer. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957). Under the rule of In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), if there is any evidence of probative force in support of the finding, the finding is binding on the Appellate Court.

Appellant also urges that the issue should not have been submitted for the reason that she was entitled to rely on the Defendant’s obeying the yield sign, and was not under a duty to apply her brakes until it was apparent that the Defendant would not yield. The proposition is sound, and there could be no orderly flow of traffic on our crowded streets if drivers could not rely on established rights of way. But, we can not agree with Appellant that the facts of this case are such that the issue should not have been submitted because the Plaintiff-Appellant had the right of way. Balanced against her having the right of way is the duty on her part to exercise it with [234]*234due regard to her own safety and that of others. She could not blindly exercise it, but had a duty to prevent an accident if she could. When that duty arose is discussed by this Court in the recent case of Padilla v. Chambers, 464 S.W.2d 417 (1971, n. w. h.), and will not be repeated here.

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Related

Biggers v. Continental Bus System, Inc.
303 S.W.2d 359 (Texas Supreme Court, 1957)
Blakeley v. Howard
387 S.W.2d 96 (Court of Appeals of Texas, 1965)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Baumler v. Hazelwood
347 S.W.2d 560 (Texas Supreme Court, 1961)
Garza v. Alviar
395 S.W.2d 821 (Texas Supreme Court, 1965)
Schad v. Williams
398 S.W.2d 603 (Court of Appeals of Texas, 1965)
Wagner v. Foster
341 S.W.2d 887 (Texas Supreme Court, 1960)
Padilla v. Chambers
464 S.W.2d 417 (Court of Appeals of Texas, 1971)

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Bluebook (online)
469 S.W.2d 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bretz-v-villalva-texapp-1971.