Doran v. Eaton

376 S.W.2d 367, 1964 Tex. App. LEXIS 1987
CourtCourt of Appeals of Texas
DecidedFebruary 26, 1964
Docket11155
StatusPublished
Cited by3 cases

This text of 376 S.W.2d 367 (Doran v. Eaton) 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
Doran v. Eaton, 376 S.W.2d 367, 1964 Tex. App. LEXIS 1987 (Tex. Ct. App. 1964).

Opinions

PHILLIPS, Justice.

This cause of action arose out of an automobile-pedestrian accident in which Phillip Doran, a minor 8i/¿ years old at the time of the accident, was struck by an automobile driven by Marsha Lynn Eaton, also a minor 15 years 8 months old at the time of [368]*368the accident. The automobile that Marsha Lynn Eaton was driving at the time was owned by Mrs. Pat Billingsley. Suit against the driver of the car and the owner thereof was brought by Arthur Doran, individually and as next friend for his son, Phillip. R. T. Eaton, Jr., father of the driver, was appointed by the court as guardian ad litem for his minor daughter, Marsha Lynn Eaton. Mrs. Billingsley’s husband, Mr. William H. Billingsley, was joined as a defendant.

After the plaintiff had presented his case, the trial court granted an interlocutory order and judgment, severing plaintiff’s cause against Mrs. Billingsley, the owner of the •car, and her husband and ordered that plaintiff take nothing as to these defendants.

The jury returned findings that both the pedestrian plaintiff and driver defendant of the car were negligent and that the negligence of each was the proximate cause of the accident. On this verdict the court entered judgment that plaintiff take nothing. From this judgment plaintiff has duly perfected his appeal to this Court.

The judgment of the trial court is affirmed.

Because of the number of parties involved, the parties will be referred to in this opinion by their position in the court below or by their proper names.

We will consider plaintiff’s points of error two through six first as they are grouped together and because together they raise the issues of contributory negligence, which issues determine this case. These points are that the trial court erred in overruling plaintiff’s motion for judgment non obstante veredicto, that there was either no evidence or insufficient evidence to support the issues that the minor plaintiff failed to keep a proper lookout and the issues as to proximate cause relating to each issue as to proper lookout.

The accident in question occurred on a bridge on Buffalo Speedway in Houston, Harris County, Texas, between 3:30 and 4 P.M. on a bright, clear afternoon. Buffalo Speedway extends north and south, consists of two traffic lanes running north and two running south divided by an esplanade. The speedway is straight and level and there are no obstructions near the part of the speedway in question to obstruct one’s vision in any direction. Just before the accident, the minor plaintiff was located on the east edge of a bridge on the speedway. There was another minor boy with him. A third minor boy was located on the west side along the edge of the bridge. The defendant driver, Marsha Eaton, was proceeding south in Mrs. Billingsley’s car at what the evidence shows to be approximately twenty miles an hour. The minor boy who had been with the plaintiff on the east side of the speedway and on the edge of the bridge, ran across the speedway over to the minor who was located on the west side of the speedway and the plaintiff followed at a run some six feet behind him. Before plaintiff had run across the southbound lanes, he was struck by the car driven by defendant Marsha Eaton.

At the time of the accident there was an auto driven by a Mrs. Neyland headed north on the speedway. Mrs. Neyland saw the accident. Mrs. Neyland stopped immediately and rendered aid to the fallen plaintiff until help arrived. Mrs. Neyland testified that she had seen the auto driven by the defendant Eaton from the time that it had turned onto the speedway some two blocks north of the bridge where the accident occurred. There were no other autos close to the scene of the accident.

Plaintiff contends that any findings of his failure to keep a proper lookout must be set aside as there was no direct evidence that he so failed to keep a proper lookout. We cannot agree with this contention and the cases cited by the plaintiff do not so hold.

Kelly v. Hamm, Tex.Civ.App., 337 S.W.2d 608, writ ref. n. r. e., cited by plaintiff does not support plaintiff’s contention but [369]*369holds that even where the jury had found that minor plaintiff had failed to keep a proper lookout, the preponderance of the evidence was that he had kept a proper lookout. The court noted that there was no direct evidence that he had not kept a proper lookout and reversed and remanded the case for a new trial.

In Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, writ refused, a minor was struck while crossing a street. The minor did not testify but her mother was allowed to testify that the child had stated that she had not seen the truck coming. There were two other witnesses to the accident but they could not say whether or not the child had stopped before crossing or had failed to look in both directions before attempting to cross. Even so, the jury found that (issue 9) the child failed to stop before attempting to cross, failed (issue 10) to keep a lookout for defendant’s truck; and (issue 11) failed to look in both directions before attempting to cross. The court in concerning itself only with the failure of the child to keep a proper lookout stated:

“The law very clearly imposes upon each and every person proceeding along or across a public highway or street the duty of maintaining a ‘proper lookout’ for his own safety, the term importing such lookout as a person of ordinary prudence would have kept under the same or similar circumstances; in the case at bar and court charge the jury being further instructed that ordinary care when referring to plaintiff ‘means that degree of care which would be used by a person of ordinary prudence, of Donnie Faye Blunt’s age, experience, capacity, intelligence and discretion * * ”

In affirming the jury’s finding that the minor had failed to keep a proper lookout the court stated the law as follows:

“Otherwise stated, defensive issue No. 10, on lookout, presenting, as it does, the question of whether a reasonably prudent child of plaintiff’s age, experience, capacity, intelligence and education would have acted differently under the same or similar circumstances, was for determination by the jury; and the court’s judgment in consequence of findings adverse to a recovery must be affirmed.”

In Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, the Texas Supreme Court held that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. That the jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it.

The issue on lookout presented to the jury in the case at bar was framed substantially as that in the Blunt case, above, and the jury had evidence of probative value from the facts and circumstances proven and the reasonable inferences and deductions drawn therefrom to find that the plaintiff had failed to keep a proper lookout.

Plaintiff assigns error to the trial court in entering an interlocutory take nothing judgment in favor of defendants Mrs. Pat Billingsley, the owner of the car, and her husband.

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City of Center v. Roberts
469 S.W.2d 27 (Court of Appeals of Texas, 1971)
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Doran v. Eaton
376 S.W.2d 367 (Court of Appeals of Texas, 1964)

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Bluebook (online)
376 S.W.2d 367, 1964 Tex. App. LEXIS 1987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doran-v-eaton-texapp-1964.