Rash v. Ross

371 S.W.2d 109, 1963 Tex. App. LEXIS 1688

• Court: Court of Appeals of Texas
• Decided: June 5, 1963
• Docket: 14069
• Status: Published

Opinions

POPE, Justice.

Three groups of plaintiffs have sued for and recovered judgments against Roy C. Rash, d/b/a Border Construction Company, and Ross C. Watkins, Inc., hereafter called defendants. Henry Gorman Ritchie, Sr., was driving south on Highway 81, between Cotulla and Dilley and had a head-on collision with a vehicle driven by Ronald C. Guyer who was going north. Jean Raymond Ludeke was Guyer’s passenger guest. Ritchie and Ludeke were killed in the accident. Guyer, Ritchie’s widow and children, and Ludeke’s executor and the guardian of his children, all sued the defendants. The plaintiffs will be referred to as the Ritchies, Guyer and Ludekes.

Defendants were contractors for the construction of eight miles of Highway 81 in which area the accident occurred. The jury found that defendants were negligent in failing to have warning signs for persons using the highway, in failing to have lighted flares designating the proper path for vehicular traffic use, in failing to have warning flags designating the proper path for vehicular traffic use, and in failing to have a marking down the center of the road in question to designate the proper path for vehicular traffic use. Each of these failures was a proximate cause of the collision. The form of these issues is attacked because each question limited the inquiry to the “time and place in question.” We overrule the point. Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190; Lake Shore & M. S. Ry. Co. v. Johnsen, 135 Ill. 641, 26 N.E. 510, 512.

RITCHIE JUDGMENT

Defendants pleaded that Ritchie was contributorily negligent as a matter of law, in that he violated the statutory standards of §§ 52 and 53, Art. 6701d, Vernon’s Ann.Civ.Stats., which required Ritchie to drive on his right side of the road. Lewis v. Reichel, Tex.Civ.App., 256 S.W.2d 216. Ordinarily, negligence per se is submitted in two issues, one that inquires about the conduct claimed to be violative of the statute, and the other about proximate cause. When it is claimed, as Ritchies do, that the statutory violation was excused and excuse is properly raised, statutory negligence is dissolved, and the common law negligence issue is submitted. The court submitted the issues about Ritchie’s contributory negligence in that manner. The jury found, supported by the evidence, that Ritchie drove his vehicle to the left of the center of the traveled portion of the highway immediately before the collision, but that this was not negligence. Although the proximate cause issue was conditionally submitted, the jury answered the issue and found that the act was a proximate cause of the collision.

Defendants contend that the answer which convicted Ritchie of violating the statutory standard, together with the proximate cause answer, established negligence per se. This argument disregards the fact that Ritchies established their excuse for being on the wrong side of the road. Violations of the traffic law, such as driving on the left side of the road in violation of a statute may, in particular circumstances, he excused. Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d 792; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 438; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, 725; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Hodges, Special Issue Submission in Texas, 67.

The evidence in support of excuse justified the submission of the common law negligence issue instead of submitting the case as one of statutory negligence. Ritch-ie was across the center line, but he was following the road on which the pavement had been scraped away. As he proceeded south, he came upon an unlighted area at a point where there was new pavement. The new pavement angled across the old pavement toward the northwest. The confusing result at night was that at the junction of the scraped road with the new pavement, one could hardly tell where one’s side of the road was. A highway patrolman described a shallow ditch which had been built across the road. As one crossed it, he said that the ditch would pitch a vehicle to the left. There was no center stripe. The evidence supports the submission and finding of Ritchie’s justification in being across the center line. The jury in answering, unnecessarily, the proximate cause issue in the affirmative, did nothing more than find that Ritchie’s faultless act in driving across the center line caused the accident. The trial court properly gave judgment on the verdict for the Ritchies.

GUYER JUDGMENT

Plaintiff Guyer, who was northbound when he ran into Ritchie's southbound car, recovered a judgment notwithstanding the jury verdict. The jury found that Guyer was contributorily negligent in that (1) he drove his vehicle to the left of the center of the traveled portion of the highway, and (2) this was a proximate cause of the collision. These findings defeat Guyer’s right to recover, and the court should not have disregarded them. Not until Guyer filed his motion for judgment notwithstanding the verdict, did he ever rely upon excuse as a justification for his violation of the statutory standard of care.

Plaintiff Guyer did not plead excuse. Guyer asserted defendants’ negligence. Defendants answered by a plea that Guyer was contributorily negligent as a matter of law. Defendants specifically pleaded that Guyer failed to drive on the right side of the road in violation of Section 52, Article 6701d, and that he also failed to give at least one-half of the main traveled road to the approaching vehicle in violation of Section 53 of the same statute. This was a clear pleading of statutory contributory negligence to which no exceptions were leveled. Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Lane v. State, 165 Tex.Cr.R. 222, 305 S.W.2d 595; Lewis v. Reichel, Tex.Civ.App., 256 S.W.2d 216. Guyer’s pleadings gave no notice that he was relying upon excuse as a justification for the claimed violation. A failure to plead an inferential rebuttal defense permits proof, but does not entitle one to an issue on such a defense. Rule 279, Texas Rules of Civil Procedure; Kiel v. Mahan, Tex.Civ.App., 214 S.W.2d 865, 867; Great Atlantic & Pacific Tea Co. v. Garner, Tex.Civ.App., 170 S.W.2d 502; City of Coleman v. Smith, Tex.Civ.App., 168 S.W.2d 936.

Guyer did not prove excuse. His theory of facing the charge that he was contribu-torily negligent was by way of a strict denial. In the course of the trial he did not seek to excuse his being on the wrong side of the road; he steadfastly denied that he was anywhere except on the right side. He denied the violation, and stood upon his denial.

Guyer did not request an issue which would have presented the excuse issue to the jury. This was in keeping with his pleadings, proof and theory of the case. The trial court accordingly submitted the two issues which inquired about the pleaded statutory violation and proximate cause. To this stage, defendants affirmed Guyer’s violation, and he denied it. This was in keeping with the pleadings of statutory contributory negligence by defendants and the theory of overcoming it by plaintiff Guyer. If Guyer desired a different charge, one which would inquire about excuse, what was he required to do? In our opinion, it was his duty to request the issue. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, has some helpful suggestions. It states that the one who seeks to avail himself of excuse for violation of a penal statute, should go forward with the evidence and raise an issue. Phoenix says that the trial court should then make a preliminary determination whether excuse has been raised, and if so, it should submit an excuse issue. In our opinion, somebody had the duty of requesting the issue, which is something more than merely inviting the court to make a preliminary decision. Guy-er had that duty.

Excusable or justifiable violation of a penal statute is an inferential rebuttal issue. Sec. 25, Hodges on Special Issue Submission in Texas. Guyer owned the excuse issue, because he was the one who would benefit from it. Logically, he would be the one who should request it, for he is the one who wanted it. Excuse could help him because it would overcome findings of statutory contributory negligence. It was a rebuttal to the claim that Guyer was contributorily negligent. If Guyer excusably violated the statute, the excuse would serve as an inferential fatal inconsistency with the idea that Guyer was con-tributorily negligent. This is so for the same reason that one is not negligent if there is an unavoidable accident, and because A is not a cause of an accident, if B is the sole proximate cause of an accident.

The burden of persuading the jury that Guyer was contributorily negligent remained at all times on the defendants. But the burden to request an issue about Guyer’s excusable violation of the statute was not on the defendants. They contended that there was a statutory violation. Guyer could have claimed, but did not claim an excusable statutory violation, but if he did, it was his issue and he should have requested it. He should have requested it for the same reason that one who relies upon unavoidable accident or sole proximate cause must request it. These issues too, must be disproved by the party who does not request them, because they are inferential rebuttal issues. Sec. 71, Hodges on Special Issue Submission in Texas.

If Guyer had pleaded, proved, and requested an excuse issue, the court should then have submitted Guyer’s excuse theory. It could have done this, as it did in the case of Ritchie, supra, by asking three issues: (1) whether there was a statutory violation, (2) whether it was negligence, using the common law standard, and (3) whether it was a proximate cause. See Ratliff, Negligence per se in Texas, 41 Tex.L.Rev. 104, 117, for other suggestions about the special issue form. If the case had been submitted in that manner, defendants would have kept the burden of persuasion on all three issues. By arguing the second of the above issues defendants would need to negative Guyer’s claim of excuse in order to obtain a finding that Guyer was negligent. This is a true inferential rebuttal issue.

Guyer passed the pleading, evidence, charge and verdict stage before he ever injected excuse into the case as his theory to overcome his own contributory negligence. Under these circumstances, the court correctly submitted issues which presented defendants’ theory of statutory negligence. The jury found that Guyer was contributorily negligent as a matter of law, and judgment should have been rendered upon that verdict. That part of the judgment should be reversed and rendered that Guyer take nothing.

LUDEKE JUDGMENT

Ludeke was killed while riding as a passenger with Guyer. He is not chargeable with the negligence of Guyer, and defendants make no contention that he is. They urge that the trial court erred in refusing to submit issues that he was contributorily negligent in failing to keep a look out. Only in exceptional circumstances, such as would cause the passenger to know or believe that he can not trust the vigilance of the driver, is there a duty on the passenger to keep a look out. Edmiston v. Tex. & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857. These circumstances are not present in this case. Larson v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 254 S.W.2d 215; Davis v. Shafer, Tex.Civ.App., 222 S.W.2d 145; Harrison v. Southwest Coaches, Tex.Civ.App., 207 S.W.2d 159; Safeway Stores, Inc. of Texas v. Webb, Tex.Civ.App., 164 S.W.2d 868; Harper v. Texas & P. R. Co., Tex.Civ.App., 146 S.W.2d 426; International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760; City of Uvalde v. Stovall, Tex.Civ.App., 279 S.W. 889. The Ludeke judgment will stand.

Defendants have other points which must be discussed. Plaintiffs offered certain pictures in evidence which portrayed the scene of the accident the day after the fatal collision. These showed that a white stripe was then painted to identify the center of the road, and particularly as the black colored new pavement ran into the dull colored old pavement. While post-accident safety precautions may not be proved, this rule does not forbid proof of conditions of a thing or place at the time of an injury, even though to prove it one must also show the changes. The trial court admitted the pictures and instructed the jury to regard the scene as it was at the time of the accident, and to disregard any alterations. The pictures were properly admitted. City of Beaumont v. Dougherty, Tex.Civ.App., 298 S.W. 631; Winnsboro Cotton Oil Co. v. Carson, Tex.Civ.App., 185 S.W. 1002; Missouri K. & T. R. Co. v. Rose, 19 Tex.Civ.App. 470, 49 S.W. 133; 2 McCormick and Ray, Texas Law of Evidence, § 1171; 62 A.L.R.2d 1296, 1309.

Jury misconduct is another point. Only one form is urged, and it is that the jurors discussed the pictures which portrayed post-accident safety precautions. Three jurors testified, and only two mentioned any discussion about painting the center stripe on the road after the accident, or other safety precautions. Juror Akraman recalled mention of the center stripe, but its mention by the jury, according to her, was in this fashion: “it was brought up and every time we looked at the pictures someone would say * * * they mentioned the center stripe, they’d say that it wasn’t in evidence, that we weren’t supposed to take that into consideration, but there was talk.” She denied that there was any discussion of warning signs, metal flags or flares that were set out after the accident. The trial court overruled the motion for new trial without findings. This could mean, by the implied finding on the basis of this evidence, that there was no misconduct at all. Kimble v. Younger Bros.-J. M. English Truck Lines, Tex.Civ.App., 283 S.W.2d 254, 257. In any event, the misconduct was rebuked every time it was brought up and was harmless. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558.

The judgment of the trial court is accordingly affirmed insofar as it rendered judgment for those who claim through and under Henry Gorman Ritchie, Sr., and Jean Raymond Ludeke. The judgment is reversed and rendered that Ronald C. Guy-er take nothing. Since appellants prosecuted this appeal with success as to Guyer, but not as to the other two groups of defendants, one-third of the costs are adjudged against Guyer, and the other costs are adjudged against appellants.

On Motion for Rehearing.

The point in the motion for rehearing about defendants’ right to contribution from Guyer was not preserved.

The motions for rehearing by Guyer and the defendants are overruled.