Long v. Surls

275 S.W.2d 728, 1955 Tex. App. LEXIS 2453
CourtCourt of Appeals of Texas
DecidedFebruary 4, 1955
Docket14778
StatusPublished
Cited by8 cases

This text of 275 S.W.2d 728 (Long v. Surls) 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
Long v. Surls, 275 S.W.2d 728, 1955 Tex. App. LEXIS 2453 (Tex. Ct. App. 1955).

Opinions

CRAMER, Justice.

This is a common law damage suit for personal injuries and property damage growing out of a collision at or near the intersection where Corning Street dead-ends into Lancaster Road within the City limits of Dallas at 2:25 a. m. on February 23, 1952. Appellant Long was driving a 1951 Interational Pickup Truck, owned by appellant Windshield Glass Mfg. Company, in a northerly direction on Lancaster Road and was turning west into Corning. Appel-lee Suris was driving a 1951 Chevrolet sedan in a southerly direction on Lancaster and came over and down a hill at a rate of speed in excess of 30 miles per hour. The collision occurred on the west side of Lancaster as appellant Long was making his left turn. Appellee’s automobile after skidding approximately 40 feet, knocked the truck back 30 feet down Lancaster. Billie Jeannine Stapleton, wife of appellant Billy Joe Stapleton, and her infant son Earvin Lee Stapleton, were passengers in the truck. Both vehicles were damaged and appellee Suris and Billie Jeannine Stapleton and Earvin Lee Stapleton all received personal injuries. Appellee Suris brought suit against appellant Long for personal injuries and property damages to his Chevrolet sedan. Appellee Carl R. Gray, Jr., Administrator of Veterans Affairs, filed a plea of intervention to recover $631 hospital expenses incurred on behalf of appellee Suris at the Veterans Administration Hospital at McKinney, Texas, as a result of the injuries sustained by appellee Suris in said collision. Appellant Billy Joe Stapleton, individually and as next friend for his minor son, Earvin Lee Stapleton, and the 'Windshield Glass Mfg. Company brought suit against appellee Suris for personal injuries to Billie Jeannine Stapleton and Earvin Lee Stapleton, and property damage to the truck. The two suits were consolidated and tried together.

[730]*730In response to special issues ■ the jury • found: (1) That Suris had the right of way; (2). that appellant Long failed to yield the right of way; (3) that such failure was a proximate cause of the collision and (4) the sole proximate cause of the collision; (5) that Suris in his automobile was 'in a position of peril; (6) that Long discovered and realized such peril to- be one from which Suris would probably not be able to extricate himself; (7) that such discovery was in time that by • the use of ordinary care and all means at his command consistent with his own safety and that of his passengers and his truck he could have avoided the collision; (8) that Long, after such discovery, failed to exercise ordinary care to use all means at his command consistent with safety to himself, his passengers and the truck to avoid the collision; (9) that such failure proximately caused the collision; (10) the charge contains no issue No. 10; (11) Suris did not fail to keep á proper lookout-; (12) not answered according to instruction; (13) that appellee Sufis was operating his automobile at a rate of speed in excess of 30 miles per hour; (14) but that such speed did not proximately cause the collision; (15) that Suris was operating his automobile at an excessive rate of speed under the then existing circumstances; but (16) such excessive speed was not negligence; (17) not answered; (18) that at the time, etc., Long did not have the right of way; (19-20) not answered: (21) found that appellee Suris did not fail to have his automobile under proper control; (22) not answered; (23) that Suris on the occaT sion in question failed to apply his brakes in time; (24) but such failure was not negligence; (25) not answered; (26) Suris did not fail to decrease his speed immediately prior to the accident; (27-28) not answered; (29) Suris did fail to turn his automobile to the left in time to avoid the collision; (30) but such failure was not negligence; (31) not answered; (32) that the accident was not unavoidable; (33) that Suris was not suddenly confronted with an emergency; (34) not answered; (35) that immediately before the collision appellant Long in his automobile was not in a position of peril; (36 to 39 inclusive) not answered. The, jury then foufed for injuries as follows: (40) To Billy Joe Staple-.ton $750; (41) Earvin Lee Stapleton $250; (42) to appellee Suris $16,910.

Appellants brief fifteen points of error which for convenience will be considered as briefed in groups. Points 1 to 9 inclusive comprise the first group and 'are in -substance: (1) The trial court erred in overruling appellants’ motions for judgment in their favor, disregarding the jury’s answers to issues 4, 6, 7, 8, 9, 14 and 16; (2) in not holding there was no evidence to support the answer that Long’s failure to yield the right of way was the sole proximate cause of the collision; (3) in not holding the evidence insufficient to support the jury’s finding that appellant Long’s failure to yield the right of way was the sole proximate cause of the collision; (4) in not holding that there was no evidence .to support the finding that appellant Long discovered appellee Suris to be in a position of peril from which he would not be able to extricate himself by the use of ordinary care in the use of all means at his command, and failure to use ordinary care to use such means, and that such failure proximately caused the collision; (5) in not holding the evidence insufficient to support the jury’s findings on discovered peril; (6) in not holding there was no evidence to support the jury’s finding that Suris’ operation of his automobile in excess of 30 miles per hour did not proximately cause the collision; (7) in not holding the evidence was insufficient to support the jury’s finding that Suris’ operation of his automobile in excess of 30 miles per hour was not a proximate cause of the collision; (8 — 9) in not holding there was no evidence, or there was insufficient evidence to support the jury’s answer to issue No. 16 that the excessive speed under the existing circumstances was not negligence.

These points are countered that: (1) Trial court correctly overruled Long’s motion for judgment; (2) issue No. 4 is supported by the evidence; (3) the evidence supports the jury’s findings to issues 5 to 9 [731]*731inclusive; (4) the jury’s finding to issue 14 is supported by the evidence; (5) issue 16 is supported by the evidence.

In considering these points we will first consider the question of no evidence to support the jury’s findings to issues 4, 6 to 9 inclusive, 14 and 16. Issue No. 4 was the last of a series of four issues; In issues 1, 2, 3, and 4 the jury found that Suris had the right of way; that Long failed to yield the right of way; that such failure was proximate cause and also the sole proximate cause of the collision. By issues S to 9 the jury found, simply stated, that Suris was in a position of peril which position was discovered and realized to be one from which Suris probably would not be able to extricate himself; and such discovery was in time that Long, consistent with -his own and his passengers’ and his truck’s safety, could have, by the use of all means at his command, avoided the collision. By issues 13 and 14 that Suris was operating his automobile in excess of 30 miles per hour, but that such speed did not proximately cause the collision.

To sustain the jury’s findings it is only necessary that the evidence preponderate in favor of the findings. Under the above rule the evidence favorable to the verdict was in substance as follows:

Maston Clay Long, appellant, testified material to the points that he was about a block from the intersection when he saw Suris’ lights creeping up over the hill.

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Long v. Surls
275 S.W.2d 728 (Court of Appeals of Texas, 1955)

Cite This Page — Counsel Stack

Bluebook (online)
275 S.W.2d 728, 1955 Tex. App. LEXIS 2453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-surls-texapp-1955.