Waldon v. City of Longview

855 S.W.2d 875, 1993 Tex. App. LEXIS 1634, 1993 WL 188828
CourtCourt of Appeals of Texas
DecidedJune 7, 1993
Docket12-91-00172-CV
StatusPublished
Cited by39 cases

This text of 855 S.W.2d 875 (Waldon v. City of Longview) 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
Waldon v. City of Longview, 855 S.W.2d 875, 1993 Tex. App. LEXIS 1634, 1993 WL 188828 (Tex. Ct. App. 1993).

Opinion

BILL BASS, Justice.

This negligence case arose out of an auto accident between the Appellants and Rory Ben Cuellar, an on-duty Longview Police Officer. The trial court rendered judgment for the City on the jury’s verdict finding Waldon 65% negligent and the City of Longview 35% at fault.

Officer Cuellar was proceeding East on East Avalon Street in response to a burglary alarm. He overtook the Waldon automobile which was proceeding slowly East on East Avalon. The Waldons had mistakenly turned onto East Avalon a few moments before, and according to Officer Cu-ellar, seemed to be looking to the right as if trying to read a house address. Cuellar began to pass on the left of the Waldon car just as the Waldons attempted a left turn into a driveway. The collision resulted. Officer Cuellar testified that the Waldons did not signal before turning. There was other testimony that the left turn indicator was blinking just before the collision.

The Waldons sued Officer Cuellar for negligence, and the City of Longview as vicariously liable for Cuellar’s negligence under Texas Civil Remedies & Practice Code 101.001 et seq., Texas Tort Claims Act. The Waldons brought suit against the City upon a theory of negligent en- *877 trustment. The trial court sustained the Appellees special exception to the negligent entrustment cause, denying Appellants the right to proceed on that theory.

The City of Longview alleged the greater comparative fault of the Waldons. The jury returned a verdict finding Waldon 65% at fault and Longview 35% at fault.

In their first point of error, the Waldons urge “the trial court erred in submitting negligence per se instructions in the court’s charge as it was not supported by the pleadings and proof in the case.”

Over the Waldons’ objection, the trial court submitted the following instruction to the jury:

[O]ur law provides that no person shall turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.
You are further instructed that a signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

Appellants contend that the court’s instruction was, “in essence,” a negligence per se instruction. Appellee answered only that “the plaintiffs’ injuries and other damages were caused by their acts and/or omissions and [defendants] request that they be judged comparatively by the trier of fact.” The Appellants contend that Longview could not rely upon the defense of negligence per se, because it had failed to expressly plead a statutory violation reasonably identifying the statute relied upon. Therefore, Appellants argue, there was an impermissible variance between the pleadings, proof, and the court’s charge.

Longview counters that the instruction is not a negligence per se instruction, but merely a paraphrase of Texas Revised Civil Statute 6701d, Section 68, correctly instructing the jury on the driver’s duty. The instruction does not instruct the jury that failure to comply is negligence as a matter of law. Nor does it indicate the court’s opinion of whether the Appellant did or did not signal.

An integral part of a negligence per se instruction is an affirmative statement that failure to comply with a particular statute is negligence as a matter of law. Southern Pacific Company v. Castro, 493 S.W.2d 491, 497 (Tex.1973). The central disputed fact in the case was whether Appellants signaled before turning. Evidence on either side of the question was admitted without objection. The court did not abuse its considerable discretion in submitting the challenged instruction. Appellants’ first point is overruled.

In points of error two and three, Appellants maintain that the trial court reversibly erred in admitting into evidence, over Appellants’ objection, Appellee’s Exhibit Numbers One and Two. Appellee’s exhibit number one is the handwritten, and signed, statement of Appellant Russell Waldon describing the accident for the police shortly after the accident occurred. The statement does not mention that he had used his turn indicator before turning. At trial, Waldon testified unequivocally that he had signaled the turn.

On cross-examination, Waldon acknowledged that he made the statement the day of the accident and that it contained no mention of his use of the turn indicator. Appellee then offered the statement into evidence. Appellants challenged its admission, insisting that it was not a prior inconsistent statement as Appellee argued. In the Appellant’s view, the failure to mention his use of the turn indicator was not inconsistent with his later version of the event, which underscored his use of the turn indicator. The trial court admitted it as the admission of a party.

Appellant maintains that Waldon’s statement and his position at trial are not inconsistent, and that a contradiction between the two is required if the prior statement is to be admissible as the admission of a party.

*878 Appellees contend that Rule 801(e)(2) of the Texas Rules of Evidence does not contain an inconsistency requirement. This omission is more meaningful when considered in conjunction with 801(e)(1)(A) (Prior statement by witness), which specifically requires that to be admissible, the prior statement be inconsistent with the declar-ant’s later testimony. See Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex.1980). Moreover, Appellee argues the omission does constitute an important inconsistency. If it were otherwise, Appellant would have had no motive to object to a statement that merely bolstered his own testimony.

Given the circumstances of this collision, the use of the turn signal is an important fact that a witness might reasonably be expected to relate in describing the accident. If an event is of such salient importance that the declarant would ordinarily have been expected to relate it, the failure of a party to mention the event in a prior statement may constitute an admission that the event did not occur. Saldana v. Houston General Ins. Co., 610 S.W.2d 807, 811 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.). Moreover, the Rules of Evidence have apparently rejected the inconsistency requirement as a prerequisite to the admissibility of the statements of parties. The trial court did not err in admitting Russell Waldon’s prior statement as the admission of a party. Appellants’ second point of error is overruled.

Appellants’ third point challenges the trial court’s admission of Angelia Wal-don’s prior statement. Her statement also failed to mention the turn indicator’s use, although she testified to its use at trial.

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Bluebook (online)
855 S.W.2d 875, 1993 Tex. App. LEXIS 1634, 1993 WL 188828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldon-v-city-of-longview-texapp-1993.