Burnett v. Howard

466 S.W.2d 16, 1971 Tex. App. LEXIS 2972
CourtCourt of Appeals of Texas
DecidedJanuary 21, 1971
DocketNo. 15706
StatusPublished
Cited by1 cases

This text of 466 S.W.2d 16 (Burnett v. Howard) 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
Burnett v. Howard, 466 S.W.2d 16, 1971 Tex. App. LEXIS 2972 (Tex. Ct. App. 1971).

Opinions

PEDEN, Justice.

Rear-end collision case. Mrs. Burnett, one of the appellants, was the driver of an automobile that was struck from the rear by one driven by Jas. T. Howard, the ap-pellee, as both vehicles approached a red traffic signal light.

By its verdict the jury did not find any primary negligence on the part of Mr. [17]*17Howard but did find that Mrs. Burnett’s contributory negligence proximately caused the accident. She, her husband and her son, who was a passenger in her car, have appealed from a take-nothing judgment entered on the jury verdict.

In response to special issues the jury did not find 1) that Howard failed to keep a proper lookout or 3) that he was following Mrs. Burnett’s car closer than a person of ordinary prudence would have done in the exercise of ordinary care under the same or similar circumstances or 5) that he failed to timely apply his brakes. The jury did find 7) that immediately before the collision Mrs. Burnett slowed her vehicle abruptly, 8) that this was negligence, 9) and a proximate cause of the collision, 10) that she slowed her vehicle at a place in relation to the intersection where it would not have been slowed by a person of ordinary prudence, etc., and 11) this was a proximate cause of the collision. The findings of damages totalled $914. No issue was submitted to the jury to inquire as to whether Mrs. Burnett kept a proper lookout.

The appellants have conceded that their first point of error is not well taken. Their second and third points allege that the trial court erred in submitting the seventh and tenth special issues because Mrs. Burnett had no duty to do anything but what she did when faced with a red traffic signal. Their next points of error assert that each of the jury findings is so against the great weight of the evidence as to be clearly wrong. In deciding the latter points we must consider all the evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex. Sup. 1965). We look first to that which concerns liability.

The first witness to testify was Mr. Fa-gan, an officer in the Pasadena Police Department, who made an investigation of the accident. He did not see it happen but arrived immediately thereafter. He was shown to be qualified to testify as an expert concerning his investigation. He related that the point of impact was on Spencer Highway about six feet north of its south curb line and about 78 feet west of its intersection with Burke Road. Spencer Highway has four traffic lanes and Burke Road has two. There are traffic control signal lights on overhead wires at the intersection. The cars were going east on Spencer Highway when Mr. Howard’s car struck Mrs. Burnett’s from the rear. Mr. Howard told Officer Fagan he was driving about 40 miles per hour, which is the speed limit there, and, based on what Mrs. Burnett told him, he believes she had slowed down to approximately 30 miles per hour, probably a little bit less. He measured 6 feet of skid marks for Mr. Howard’s car before impact and 36 feet of skid marks after impact. Mrs. Burnett’s car traveled 46 feet after the collision before ending up with its front end in a ditch. Mrs. Burnett’s son, James, was in her car with her. The weather was clear and dry. To the drivers’ right was only an open field.

The officer testified further that Mr. Howard told him at the scene of the collision that he hadn’t seen the traffic light change or Mrs. Burnett slow down and he had run into the back of her car when she stopped. Mrs. Burnett had told him that she was slowing down to prepare to stop for the light and didn’t know exactly what happened. He testified that he had determined the point of impact from the debris (dirt, metal and glass) on the street and the braking skid marks. He doesn’t know whether Mrs. Burnett was going less than 30 miles per hour when she was struck. She told him that the light had turned red and she was stopping.

Appellant Mrs. Burnett testified on direct examination that she was driving east on Spencer Highway in Pasadena at about 2:30 P. M. when her car was struck from the rear as she approached the intersection at Burke Road. She was in the right-hand lane of the two lanes for east-bound traffic because she planned to turn to the right at the next intersection after Burke Road. [18]*18About two or three blocks before she got to Burke Road she was going about 30 miles per hour. The speed limit is 40 and she was a little late for a dental appointment, but she knows she was going 30 because she usually does.

No other vehicles were ahead of her or on either side of her as she approached Burke Road. She saw the traffic signal light at the intersection of Burke and Spencer turn red. As she was pushing down on the brake she heard a loud noise and the next thing she knew she was in a ditch. She didn’t see the other car before it struck hers, and she didn’t hear any horn or any brake noise. She estimated that her car was four car lengths away from the intersection when it was struck. At that time she was in the process of starting to slow down for the red light. The light had been green when she was a block away from it, and it had turned red just before she started applying her brakes.

When her car was struck she had “her foot on the brake, completely”, and was going approximately five or ten miles per hour. She had power brakes. She still had her foot on the brake when her car stopped. She had been wearing sun glasses and after the impact they were found in the back seat of her car. The damage to her car was to the left rear part.

On cross-examination Mrs. Burnett testified that she didn’t recall having seen the traffic light turn from green to yellow to red. When she saw that it was red she was around four car lengths or 75 feet away. She doesn’t know how far she was when the accident occurred, but she was slowing down to either five or ten miles per hour and had just about stopped. She admitted having testified in her deposition that when she was hit she was probably going five miles per hour. She repeated in court that she was then almost stopped.

On re-direct examination Mrs. Burnett stated that she was making an ordinary stop for a red light when the accident happened. She said she didn’t have to suddenly apply her brakes because she had plenty of room to stop; there were no cars ahead of her and there were no cars in back of her, as well as she can remember.

The appellee, Mr. Howard, testified on direct examination that the streets in question were level, straight and dry and there was nothing was nothing to obscure his vision. He remembered following Mrs. Burnett’s car before the collision for at least half of' a mile. He had looked at his speedometer, and. when he was within about two blocks of Burke Road he was driving about 40 miles per hour, but he was not catching up to Mrs. Burnett.

He did not see her slow down. Something had caught his attention, and he had briefly turned his head to look. At that time the traffic light at Burke Road was green and he was following approximately two car lengths behind Mrs. Burnett’s car. He said this would be less than fifty feet. He didn’t see her start to apply her brakes; when he turned his head back to the road he saw that her brake lights were on. He was then too close to her to stop before striking her car. He doesn’t think her car was at a complete stop when he hit it, but thinks it was moving very slowly. He started applying his brakes before the impact and tried to turn to the left. His car’s right front struck the left rear part of her car and knocked it into a ditch.

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Bluebook (online)
466 S.W.2d 16, 1971 Tex. App. LEXIS 2972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-howard-texapp-1971.