Byars v. Richardson

417 S.W.2d 854, 1967 Tex. App. LEXIS 2354
CourtCourt of Appeals of Texas
DecidedJune 29, 1967
DocketNo. 6875
StatusPublished

This text of 417 S.W.2d 854 (Byars v. Richardson) 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
Byars v. Richardson, 417 S.W.2d 854, 1967 Tex. App. LEXIS 2354 (Tex. Ct. App. 1967).

Opinion

PARKER, Justice.

S. C. Byars, et ux, and Vernice Wilkerson, et ux, sued T. L. Richardson, et ux, in the district court of Angelina County, Texas, for damages arising out of an automobile collision, which occurred November 27, 1964. The jury found it was an unavoidable accident and defendants were not negligent on the six theories of primary negligence submitted to it. On the Jury verdict, judgment was rendered that the plaintiffs take nothing. The parties will be designated as in the trial court.

The answers of the jury to the numbered special issues are as follows:

1. Mrs. T. L. Richardson did not fail to keep a proper lookout.
3. Mrs. T. L. Richardson did not fail to make such an application of her brakes as would have been made by a person of ordinary prudence under the same or similar circumstances.
5. In attempting to pass the automobile of Vernice Wilkerson, Mrs. T. L. Richardson was not negligent.
7. Mrs. T. L. Richardson was not driving at a greater rate of speed than a person of ordinary prudence would have driven under the same or similar circumstances.
9. Mrs. T. L. Richardson did not turn her automobile to the right immediately before striking plaintiffs’ automobile.
12. Mrs. T. L. Richardson was operating her car without the use of headlights.
13. Operating the car without headlights was not negligence.
15. It was an unavoidable accident.
[856]*85616. The damages to Mrs. Belle Byars was in dollars and cents “nothing”.
17. Reasonable and necessary medical expenses and doctor’s care and attention furnished to Mrs. Bell Byars to the time of trial would he fairly and reasonably compensated by the sum of $500.00.
18. $7,400.00 would fairly and reasonably compensate Mrs. Belle Byars for the reasonable and necessary medical expenses and doctor’s care and attention which she will in reasonable probability require in the future in connection with the treatment of the injuries sustained by her in the collision.
19. The sum of money which would fairly and reasonably compensate Mrs. Vernice Wilkerson for her damages directly and proximately caused by the injuries sustained by her in dollars and cents is “nothing”.
20. $25.00 would fairly and reasonably compensate Mrs. Vernice Wilkerson for the reasonable and necessary medical expenses and doctor’s care and attention furnished to the time of trial in connection with the treatment of her injuries.
21. No dollars and cents would fairly and reasonably compensate Mrs. Vernice Wilkerson for the reasonable and necessary expenses and doctor’s care and attention which she will in reasonably probability require in the future in connection with the treatment of her injuries.

Plaintiffs contend in their points of error 1 and 2 the trial court erred in overruling their motion for new trial because the answers of the jury to special issues Nos. 7 and 15 are each so contrary to the great weight and preponderance of the evidence that they are clearly wrong and manifestly unjust. In considering these two points of error all the evidence and record will be considered by this court.

This collision occurred about 5:00 p. m. on a rainy day on the highway between Lufkin and Wells, Texas. The four plaintiffs were in a Ford operated by Mr. Vernice Wilkerson. For a period of time prior to the collision, plaintiffs’ vehicle was followed by a cookie truck which was followed by the Ford operated by Mrs. T. L. Richardson. Two daughters of Mrs. Richardson were in the car with her. The daughters did not testify upon the trial. The older daughter lived in Irving, Texas. The younger, 14 years old at time of trial, lives with her mother.

Vernice Wilkerson testified:

(1) That the rain was intermittent, that is, it would rain real hard then slack up. It was raining very hard with lightning just prior to and at the time of the collision.
(2) That there was not much traffic.
(3) That his speed shortly before the accident was 35, maybe 40, miles per-hour, had glanced at his speedometer.
(4) He was just driving along when suddenly his car was hit and knocked about two carlengths off the road.
(5) He heard Mrs. Richardson tell the Highway Patrolman she was driving 65 miles per hour.
Mrs. T. L. Richardson testified:
(1) That she was familiar with the highway where the collision occurred, having traveled it frequently.
(2) That it was raining but not very hard and, at the time of the collision, the rain “* * * had slacked up. * * *»
(3) That she followed the plaintiff for some time going perhaps 40 miles per hour and never over 45 miles per hour.
(4) That she was going, she imagines, around 45 miles per hour as she started around the plaintiffs’ vehicle.

[857]*857The cookie truck traveling in the same direction as the other two cars pulled off the highway onto the shoulder at the crest of a hill. It was then that Mrs. Richardson saw the Wilkerson vehicle for the first time. It was then about four car-lengths or more ahead of her in its proper lane traveling in the same direction she was. Its speed was about 40 miles per hour; that it was raining, but not very hard, and at the time of the collision the rain had slacked up. She had her parking lights on but not her headlights. She followed the plaintiffs’ automobile for some time going perhaps 40 miles per hour. She pulled up closer to the Wilkerson car and followed it until the “no passing” marks had been parsed and she could see the way was clear, then going down the hill she accelerated her car to about 45 miles per hour. She turned to the left to go around the plaintiffs’ vehicle when about one and a half carlengths behind it. Immediately, her vehicle went into a spin. She did the best she could “to wrestle it down”, but did not apply her brakes. In the spin the front bumper on the right side of her car struck the Wilkerson car about the driver’s door. At no time was she traveling in excess of 45 miles per hour; never at anytime on the trip to Wells did she drive 65 miles per hour. She didn’t think she ever drove 60 miles per hour. When she pulled out to pass the Wilkerson car, its rear end was about one and a half carlengths from the front of her car. She estimated she spun around at least twice before she finally regained control and pulled, over to her right side of the road to the shoulder. The Wilkerson car was behind her with its front wheels on the shoulder and its rear wheels in the mud. The Wilkerson vehicle did nothing to cause the collision. She talked to the Highway Patrolman at the scene.

James Southard, the Highway Patrolman, testified:

(1) That he did not determine whose fault the accident was as this was not his job.
(2) That his opinion as to what would be a safe speed was based on the assumption that it was raining heavily at the time of the collision.

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417 S.W.2d 854, 1967 Tex. App. LEXIS 2354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byars-v-richardson-texapp-1967.