Yellow Cab Co. v. Davila

454 S.W.2d 266, 1970 Tex. App. LEXIS 2345
CourtCourt of Appeals of Texas
DecidedApril 27, 1970
DocketNo. 8053
StatusPublished
Cited by1 cases

This text of 454 S.W.2d 266 (Yellow Cab Co. v. Davila) 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
Yellow Cab Co. v. Davila, 454 S.W.2d 266, 1970 Tex. App. LEXIS 2345 (Tex. Ct. App. 1970).

Opinion

NORTHCUTT, Justice.

This is a rear-end automobile collision case. Rachel Davila, as plaintiff, joined by her husband sued Mildred Hancock who rear-ended the Yellow Cab in which Mrs. Davila was riding, and Yellow Cab for personal injuries which she sustained. Prior to the trial, the plaintiffs settled one-half of their cause of action for $4,250.00 with the Hancock defendants by settlement agreement and covenant not to sue. Plaintiffs proceeded only against Yellow Cab which joined Mildred Hancock and her husband as third party defendants for contribution and indemnity.

The case was tried to a jury which found that both Yellow Cab’s driver and Mrs. Hancock, by their negligence, caused the injuries to Rachel Davila. Damages in the amount of $16,267.47 were found and judgment for one-half of that amount was rendered only against Yellow Cab. From that judgment, Yellow Cab has perfected this appeal. Yellow Cab will hereafter be referred to as appellant and Rachel Davila as appellee.

By appellant’s first assignment of error it is contended the court erred in rendering judgment for the plaintiffs on the jury’s finding that Fugett failed to keep a proper lookout to the rear. We are concerned only with the findings of the jury as to the negligence of appellant. Concerning the negligence of the driver of the Yellow Cab in failing to keep a proper lookout for vehicles approaching from his rear, the following issues were propounded to the jury as follows:

“SPECIAL ISSUE NO. 5: Do you find from a preponderance of the evidence that the taxicab driver, Joel Fugett, at the time or just prior to the collision failed to keep such a lookout for vehicles approaching from his rear as a person [267]*267of ordinary care would have kept under the same or similar circumstances ?
ANSWER ‘YES’ OR ‘NO’
ANSWER: Yes
If you have answered the above and foregoing special issue ‘Yes’, and only in that event, then answer the following special issue:
SPECIAL ISSUE NO. 6: Do you find from a preponderance of the evidence that such failure if you have so found, was a proximate cause of the collision in question ?
ANSWER ‘YES’ OR ‘NO’
ANSWER: Yes.”

As we view the above findings of the jury, they are immaterial findings because, as a matter of law, Fugett, under this record, had no duty to keep a lookout for cars approaching from his rear. In considering the view here taken, it is necessary to show the evidence leading to the final accident. As Fugett proceeded south on Columbia, he stopped for a red light on 11th and Columbia, and when the light changed, he proceeded south at a speed of approximately 25 mph. By the time Mrs. Hancock arrived at the intersection of 11th and Columbia, the light was green but the light at Tenth Street was red. The taxicab was not immediately in front of Mrs. Hancock as she went through the intersection of 11th and Columbia and she proceeded south toward Tenth and Columbia at a speed of 20-25 mph. The light at Tenth and Columbia remained red until Mrs. Hancock was approximately two-thirds of the way down the block at which time Mrs. Hancock said the taxicab was still considerably in front of her and presented no immediate hazard. As Fugett approached the intersection of Tenth and Columbia, the light was red. It changed to green just as he got there. Mrs. Davila, as well as Fugett, was positive that Fugett stopped or slowed in response to a red light at Tenth and Columbia. Mrs. Davila testified that as the taxicab approached Tenth Street, the light was red and if Fugett had not stopped, he would have run a red light, and after stopping in response' to the red light he then started immediately forward as the light had changed by the time he stopped.

The special issues, supra, involve the duty of Fugett to keep a lookout for vehicles approaching from his rear and his duty to give visible signal of intention to decrease his speed. In the absence of some fact that should have attracted appellant’s attention to a situation that required a lookout to the rear, he would have no duty to keep one. There is nothing in the nature of the situation shown that required appellant to watch cars to the rear.

It seems to be the general rule in Texas the lead driver is under no duty to keep a lookout for traffic which approaches from the rear. Kerr v. Dildine, Tex.Civ.App., 410 S.W.2d 808 (n. w. h.); Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116 (n. r. e.); Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481 (n. r. e.); Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435 (n. r. e.); Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229; Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308 (writ dism’d, judge, corr.). The exception to the general rule is that a duty to look to the rear arises when the lead driver does something such as changing his lane or direction, stopping or suddenly decelerating. Art. 6701d, Sec. 68, Vernon’s Ann.Texas Civil Statutes, Berry v. Sunshine Laundries and Dry Cleaning Corp., Tex.Civ.App., 387 S.W.2d 948 (n. r. e.); Riles v. Reichardt, Tex.Civ.App., 366 S.W.2d 655; Scott v. McElroy, Tex.Civ.App., 361 S.W.2d 432 (n. r. e.); Colom v. Vititow, Tex.Civ.App., 435 S.W.2d 187 (n. r. e.). The answer to the special issues, supra, deals solely with the question of proper lookout by the driver of the taxicab for vehicles approaching from the rear-of the taxicab. Under this record, we hold there was no duty on the part of Fugett to keep a lookout for vehicles approaching from his rear. We sustain appellant’s first assignment of error.

[268]*268This case has been submitted in a rather peculiar manner. The suit was first brought against appellant and Mrs. Hancock in which it is clearly pleaded that Mrs. Hancock was the party causing the damage, and the only thing alleged against Yellow Cab was failure to give proper signal indicating intention to turn to the left and failure to keep proper lookout. After a settlement of the damages was made with Mrs. Hancock and the case proceeded against Yellow Cab only, the plaintiff pleaded the driver of the cab guilty of negligence as follows:

“Plaintiffs would show that at the time and immediately prior to the collision, the driver of the taxicab, Joel Fugett, failed to use ordinary care and was negligent in the following respects, to-wit:
(1) In stopping the taxicab without first giving the appropriate signal of his intention to do so in violation of Article 6701d, Sec. 68, (C), RCS, and in this respect, he was negligent as a matter of law.
(2) In suddenly decreasing the speed of the taxicab without first giving an appropriate signal of his intention to do so.

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Bluebook (online)
454 S.W.2d 266, 1970 Tex. App. LEXIS 2345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yellow-cab-co-v-davila-texapp-1970.