Wilson v. Whitcher

477 S.W.2d 344, 1972 Tex. App. LEXIS 2632
CourtCourt of Appeals of Texas
DecidedFebruary 11, 1972
DocketNo. 17282
StatusPublished
Cited by1 cases

This text of 477 S.W.2d 344 (Wilson v. Whitcher) 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
Wilson v. Whitcher, 477 S.W.2d 344, 1972 Tex. App. LEXIS 2632 (Tex. Ct. App. 1972).

Opinion

OPINION

BREWSTER, Justice.

This was a suit for damages arising out of a rear-end automobile collision. In the trial court the plaintiff, Alice Faye Wilson, was denied a recovery on her action, and the defendant, Carolyn Whitcher, was awarded a judgment for $700.00 in damages against the plaintiff on her cross-action. The plaintiff has appealed.

The facts were that the plaintiff had been having car trouble and drove into a filling station where the attendants worked on the choke to her car. Believing it to be fixed, plaintiff then drove her car out of the private driveway of the filling station into the right-hand lane of the highway going east (Camp Bowie Boulevard, in Fort Worth), where her car motor again died and the car stopped in the busy roadway. Defendant’s automobile, also traveling east on Camp Bowie in the same lane, then collided with the rear-end of plaintiff’s car causing the damages here involved.

Appellant’s first point is that the trial court erred in refusing to give her requested instruction as to the law on sudden emergency.

Appellant had pleaded in substance that the sudden emergency arose upon the occasion in question at the time her car stalled, without warning to her, and that she did not thereafter have time to take any action other than to try to start the car, and that she had no time for deliberation. She alleged that after the emergency arose she acted as a person of ordinary prudence would have acted under the same circumstances.

The purpose of invoking the sudden emergency doctrine is simply to lower [346]*346the standard of care required during the existence of the emergency. That doctrine is not an independent ground of recovery or of defense. Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386 (1951).

If, prior to the time the claimed sudden emergency arose, the plaintiff was guilty of negligence that proximately caused the wreck, then the sudden emergency doctrine would not be applicable, because it, under those circumstances, could have no bearing on the issue that determined the outcome of the case. Higginbotham v. Ritchie, 367 S.W.2d 210 (Fort Worth Tex.Civ.App., 1963, no writ hist.) and Booker v. Baker, 306 S.W.2d 767 (Dallas Tex.Civ.App., 1957, ref., n. r. e.).

That situation existed here. The defendant had pleaded that the wreck in question was proximately caused by plaintiff’s negligence in failing to yield the right-of-way to defendant’s car. The applicable law was Art. 6701d, Sec. 74, Vernon’s Ann.Civ.St, which provides: “The driver of a vehicle about to enter . a highway from a private . . . driveway shall yield the right-of-way to all vehicles approaching on said highway.” In response to appropriate special issues the jury found that plaintiff failed to yield the right-of-way to defendant and that such failure was a proximate cause of the wreck.

This failure to yield the right-of-way was an act of negligence that occurred prior to the time the claimed emergency ever arose. In fact this failure to yield the right-of-way was one of the things that caused the emergency to arise.

Under the holdings in the Higginbotham and Booker cases,- supra, the doctrine of sudden emergency was therefore not applicable to the facts of this case and the court did not commit reversible error in failing to submit the requested instruction.

In addition to what we have said, the jury’s verdict established that defendant committed no negligence at all on the occasion in question and found plaintiff guilty of contributory negligence that proximately caused the wreck. As said, this contributory negligence was in failing to yield the right-of-way, which failure occurred prior to the time the emergency ever arose.

These jury findings were supported by the evidence in the case.

The jury findings establishing that defendant committed no act of negligence upon the occasion in question and that plaintiff was guilty of contributory negligence that occurred prior to the time the emergency arose were a complete bar to a recovery in this case by the plaintiff, and such findings entitled defendant to a recovery on her cross-action.

Under such circumstances the question of whether the court erred in refusing to give the instruction on sudden emergency became immaterial, and even if error, it was harmless in view of the fact that the claimed emergency did not occur until after the act of contributory negligence found by the jury had already been committed. Such requested instruction therefore in no way related to or had a bearing upon the issues that the jury answered that determined the outcome of this case. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (Tex.Com.App., 1939); Potts v. Joske’s of Houston, 406 S.W.2d 535 (Houston Tex.Civ.App., 1966, no writ hist.); Price v. Leon, 202 S.W.2d 309 (Galveston Tex.Civ.App., 1947, ref., n. r. e.) ; Delhi Pipeline Corporation v. Lewis, Inc., 408 S.W.2d 295 (Corpus Christi Tex.Civ.App., 1966, no writ hist.); L. B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280 (Houston Tex.Civ.App., 1964, no writ hist.); Riley v. Crossley, 383 S.W.2d 427 (Houston Tex.Civ.App., 1964, no writ hist.); Gilbert v. Shinee, 461 S.W.2d 177 (Waco Tex.Civ.App., 1970, no writ hist.); Buchanan v. Central Freight Lines, Inc., 462 S.W.2d 391 (Dallas Tex.Civ.App., 1970, ref., n. r. e.) ; Burns v. Bridge Engineering Corporation, 465 S.W.Zd 427 (Houston Tex.Civ.App., 14th Dist., 1971, ref., n. r. [347]*347e.); and Pacific Coast Engineering Co. v. Trinity Const. Co., 467 S.W.2d 635 (Houston Tex.Civ.App., 1st Dist., 1971, writ granted).

We overrule plaintiff’s first point for the reasons stated.

In plaintiff’s second point she claims error of the court in sustaining defendant’s objection to the following question propounded by plaintiff’s counsel to the witness, Ron Davis: “Now, based on what you saw out there that day, if the — if Alice Wilson, the lady that was driving the Falcon, had not had her car die, would she have been able to accelerate and get into the traffic so as not to have the collision.”

We overrule the point.

The question was objected to on the ground that it called for a conclusion and the trial court sustained the objection. We hold that this ruling was correct. The question was improper in that it did call for a conclusion.

In addition to what we have said, plaintiff’s counsel failed to cause the record to show what answer the witness would have given to the question if he had been permitted to answer it.

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