Williams v. Kidwell General Motors Corp.

508 S.W.2d 459, 1974 Tex. App. LEXIS 2223
CourtCourt of Appeals of Texas
DecidedMarch 29, 1974
DocketNo. 17379
StatusPublished

This text of 508 S.W.2d 459 (Williams v. Kidwell General Motors Corp.) 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
Williams v. Kidwell General Motors Corp., 508 S.W.2d 459, 1974 Tex. App. LEXIS 2223 (Tex. Ct. App. 1974).

Opinion

OPINION

LANGDON, Justice.

This is a suit under the Wrongful Death Act of the State of Texas, brought by the parents of the decedent, Rickey Joe Williams, a minor, who was killed while riding as a passenger on a motorcycle driven by Harold Charles Volking, which was struck by a pickup truck driven by defendant, Harold Henry, hereinafter called Henry. The case was tried to a jury. It found in answer to Special Issues Nos. 7, 8 and 9, respectively, that Henry failed to keep a proper lookout while acting within the scope and course of his employment, that such action was negligent and was the proximate cause of the death of Rickey [460]*460Joe Williams. The trial court disregarded the jury’s answers on the lookout issues, Nos. 7, 8 and 9, and granted the defendant a judgment notwithstanding the verdict. The jury further found that the appellants had suffered damages in the amount of $4,300.00 and the defendants stipulated to the burial expenses of $2,041.33, making a total recovery of $6,341.33.

Appellants perfected this appeal from the action of the trial court based upon nine (9) points of error.

We reverse and render.

For the sake of brevity our discussion will be limited to appellants’ first two points because our holding with reference to them will determine the outcome of the appeal. We have, however, considered each of appellants’ points three through nine and sustain each of them.

By their first two points the appellants contend that the trial court erred in granting the defendants (appellees) a judgment non obstante veredicto because the affirmative findings of the jury to Special Issues Nos. 7, 8 and 9 are supported by evidence of probative value and therefore judgment should have been granted them based upon the jury’s verdict.

This appeal is narrowed to the sole question of whether or not there was any evidence to support the jury’s findings. Rogers v. Stimson Contracting Company, 373 S.W.2d 548, 533 (Dallas, Tex.Civ.App. 1963, no writ hist.). In consideration of this question we have reviewed the entire record in the case. In our opinion the following summary of evidence in this cause will reflect, not only the facts presented to the jury, but also the inferences and deductions to be drawn therefrom by the jury.

Rickey Joe Williams was riding on a motorcycle as a passenger behind Harold Charles Volking, traveling in a northerly direction on U.S. 287, an expressway. The motorcycle with its two passengers left the expressway by way of the exit ramp, intending to proceed to the Wayfarer Motel. Henry, driving a pickup truck, was also traveling in a northerly direction in the left-hand curb lane on the service road that parallels the expressway. The accident, the basis of this lawsuit, occurred when the motorcycle failed to yield the right-of-way and pulled onto the service road from the exit ramp into the path of the approaching pickup driven by Henry.

Only two eye-witnesses to the accident testified, Haskell I. Rhone, Jr., and the defendant, Henry. Charles Beaver, the investigating officer, was also a witness.

Rhone pulled in behind the motorcycle in question while both were traveling in the same direction on the expressway. He followed the motorcycle at a distance of approximately 45 to 50 feet as both vehicles left the expressway and entered the same exit ramp.

Rhone testified that as the motorcycle reached the service road on the exit ramp the motorcycle stopped or almost stopped and that when the pickup truck had approached to within 20 to 30 feet at an approximate speed of 50 to 55 miles per hour, the motorcycle pulled out from behind a yield the right-of-way sign from the exit ramp and into the path of the Henry vehicle. Rhone observed the defendant’s pickup swerve to the right in an effort to avoid the motorcycle.

Henry, driver of the pickup truck, estimated his speed to be approximately 30 miles per hour.

The service road upon which Henry was traveling is a two-lane, one-way road and he was traveling in the left-hand lane as he approached the intersection of the exit ramp and the service road. To further clarify the positions of the vehicles, it is again emphasized that the freeway (U.S. 287) on which the motorcycle was traveling, with Rhone in the car behind, was parallel to the service road on which Henry was driving his pickup. The three vehicles were headed in the same direction.

[461]*461When the motorcycle and Rhone's car left the freeway via the exit ramp, they were slanting or angling toward the service road on which Henry was proceeding.

Charles Beaver, the investigating officer, made a diagram of the intersection showing the location of the Wayfarer Motel and the point where the exit ramp of U.S. 287 (the expressway) enters the service road. The diagram shows that the entrance to the Motel opens directly across the service road from the exit ramp. Beaver testified that the skid marks left by the defendant’s truck started in the left lane of traffic of the service road and progressed across the right lane of traffic, where the pickup truck struck and went over the right curb of the service road.

The location of the entrance to the Wayfarer in relation to the exit ramp is important. It is obvious from Henry’s testimony that he was not aware of where the entrance road to the Wayfarer Motel was and that he assumed from the moment he first saw the boys on the motorcycle to the point of impact that the boys were turning left at the intersection and not proceeding across the service road into the entrance to the Wayfarer Motel and he took action accordingly. According to his testimony Henry was trying to anticipate what action the boys were taking, rather than to observe what, in fact, they did do. Had Henry observed that the boys on the motorcycle were, in fact, going across the service road to the Wayfarer Motel rather than turning left, then his actions would in all probability have been different. Henry in effect yielded the inside lane to the boys on the motorcycle rather than to apply his brakes or reduce his speed so that they would have the entire left-hand lane of the highway in which to make their turn. Henry, under the evidence, assumed that the boys on the motorcycle would not stop at the yield sign. When he realized that they were not going to stop at the yield sign, he took his eyes off of them and looked to the right. He pulled his vehicle to the right and when he looked back, the boys were directly in front of him and he had, in fact, pulled directly in line with the direction they were going. It is undisputed that if Henry had stayed in the left-hand lane, the collision would not have occurred. Under the evidence in this case the jury could, with good reason, have believed that Henry would have guessed correctly had he maintained a proper lookout. Because he failed in this regard his guess or assumption was an incorrect one.

Ordinarily, proper lookout is a question for the jury. It is within the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It may resolve conflicts and inconsistencies in the testimony of one witness as well as that of different witnesses. See Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946); Biggers v. Continental Bus System, 157 Tex.

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Related

Biggers v. Continental Bus System, Inc.
303 S.W.2d 359 (Texas Supreme Court, 1957)
McWilliams v. Muse
300 S.W.2d 643 (Texas Supreme Court, 1957)
Rogers v. Stimson Contracting Company
373 S.W.2d 548 (Court of Appeals of Texas, 1963)
Walsh v. Hershey
472 S.W.2d 954 (Court of Appeals of Texas, 1971)
Powell v. Sanders
324 S.W.2d 587 (Court of Appeals of Texas, 1959)
Kiebach v. Luker
476 S.W.2d 46 (Court of Appeals of Texas, 1972)
Henderson v. Smith
354 S.W.2d 429 (Court of Appeals of Texas, 1962)
Reddick v. Lindquist
484 S.W.2d 441 (Court of Appeals of Texas, 1972)
Tips v. Gonzalez
362 S.W.2d 422 (Court of Appeals of Texas, 1962)
Lynch v. Ricketts
314 S.W.2d 273 (Texas Supreme Court, 1958)
Texas & Pacific Railway Co. v. Day
197 S.W.2d 332 (Texas Supreme Court, 1946)
Lewis v. Martin
120 S.W.2d 910 (Court of Appeals of Texas, 1938)
Austin Fire Ins. Co. v. Adams-Childers Co.
246 S.W. 365 (Texas Commission of Appeals, 1923)

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Bluebook (online)
508 S.W.2d 459, 1974 Tex. App. LEXIS 2223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-kidwell-general-motors-corp-texapp-1974.