Babb v. Young ( 1961 )

CHADICK, Chief Justice.

Anderson C. Babb, individually and as next friend of his daughter, Angelique Darlene Babb, was plaintiff in the trial court in a suit against Doyne Jackson Young. A take nothing judgment was entered. Babb, in the capacity indicated, has appealed, and briefs four points of error.

The focal point of all complaint is Special Issue 15, to wit:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question Darlene Babb was driving and operating her automobile at a greater rate of speed than a person of ordinary care and prudence would have driven under the same or similar circumstances?”

The jury answered the issue in the affirmative. The appellant’s first point is in this form:

“The trial court erred in not disregarding the jury answer to Special Issue No. 15 on the grounds there was no evidence to support said answer.”

Point Two complains the evidence was insufficient to support the answer to Special Issue No. 15, and Point Three asserts the jury’s answer is against the overwhelming weight and preponderance of the evidence. The Fourth Point reads:

“The trial court erred in the form of submission of Special Issue No. 15 which was not submitted as plead.”

The subject of this action was a collision between a 1955 DeSoto Sedan driven by Miss Darlene Babb and a 1959 Studebaker Station Wagon driven by appellee Young which occurred at the intersection of Durham and Stanford Streets, both public thoroughfares in the City of University Park, Dallas County. It occurred on a clear, sunny day. Miss Babb’s home was within two blocks of the intersection, and she was familiar with traffic regulations at that point.

Durham Street follows a north-south direction, and Stanford runs east-west. The established traffic control marker required vehicles traveling on Stanford Street to stop before entering the intersection and yield the right-of-way to vehicular traffic moving on Durham. The legal speed limit on Durham is 30 miles per hour.

Just prior to the collision at about 1:30 P.M. on the 21st day of March, 1959, Miss Babb was driving in a southerly direction approaching Stanford Street. When she was, by her own best judgment, 75 feet from the intersection, driving at a speed of 20 to 25 miles per hour, she saw Young’s car approaching the intersection from the east. Young’s speed caused Miss Babb to think that he would not stop before entering the intersection, and she removed her foot from the accelerator as a precaution, and upon full realization that Young would not stop she applied her brakes with such vigor that her car made a four-wheel skid into the intersection. The skid marks measured 56 feet.

The front of Miss Babb’s vehicle struck Young’s Studebaker about midway of its length. Damage to Young’s car was to the right door panel, and the left front fender, grill and headlight of Miss Babb’s DeSoto was damaged. Miss Babb was severely shook up and hospitalized for about two weeks.

The investigating officer located the point of impact between the colliding cars in the northwest quadrant of the intersection about four feet south of the north curb line of Stanford, and six feet east of the west curb line of Durham. Thus, Young lacked only a few feet of having passed through and cleared the intersection before Miss Babb entered it.

Judge Davis’ dissenting opinion is referred to for additional general details of the case. Only sufficient facts to explain the disposition of the questions discussed are mentioned here.

That Miss Babb was under a duty to operate her vehicle not only at a lawful speed but at a reasonable speed as she approached and entered the intersection can scarcely be doubted. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643, 645 states the duty in this language:

“ * * * a statutory right-of-way * * * is not absolute but relative, and is subject to the qualification that a person entitled to claim such right will exercise it with proper regard for the safety of himself and others. See Lewis v. Martin, Tex.Civ.App., 120 S. W.2d 910 (wr. ref.). If the driver who is under the statutory duty to yield the right-of-way fails to do so, the exercise of ordinary care may require the operator of the Other vehicle to yield.”

For other cases developing and applying this rule see, Liberty Film Lines, Inc., v. Porter, 136 Tex. 49, 146 S.W.2d 982, 987, op. adpt.; El Paso City Lines, Inc., v. Prieto, Tex.Civ.App., 191 S.W.2d 59, n. w. h.; Checker Cab Co. et al. v. Wagner, Tex.Civ.App., 199 S.W.2d 791, n. w. h.; Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, wr. ref.; Johnson et al. v. East Tex. Motor Freight Lines et al., Tex.Civ.App., 271 S.W.2d 708, n. w. h.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, n. r. e.; and Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587, n. w. h.

This court must, in considering the “no evidence” point, adhere to the rule requiring the evidence and all permissible in-" ferences and deductions therefrom be given the meaning most favorable to the jury’s answer, and decide whether it has sufficient probative value to support the finding. See Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359; Cartright v. Canode, 106 Tex. 502, 171 S.W. 696; Hall v. Medical Building of Houston, Texas, 151 Tex. 425, 251 S.W.2d 497. And the decision here is made in conformity with it.

It is undisputed that as Miss Babb drove toward the intersection her vehicle was moving at some degree of speed. Negligence was the only question for the jury to determine. That is, whether or not her speed was in excess of the speed at which an ordinarily prudent person would have approached the intersection under the existing circumstances.

The jury was not confined to her estimate of speed of her approach to the intersection, hut was entitled to consider all other evidence bearing upon the question, such as the fact that the car left a 56-foot skid mark when she applied her brakes, and had sufficient force to do considerable damage to both automobiles when it struck Young’s vehicle. In making its determination the jury could have- reasoned that her vehicle’s speed prevented her from maneuvering or taking other reasonably possible evasive action to avoid the collision with Young. The speed of a vehicle is an important factor in the ability of its driver to direct its course. The vehicle’s speed affects the driver’s opportunity to cope with foreseeable right of way interference. It is a common, perhaps universal, experience that a driver may be required to slow down, or stop, or change the course of his vehicle to avoid other traffic at intersections, regardless of traffic controls or the statutory right of precedence at the intersection. A jury of laymen would have little difficulty in concluding that a driver, approaching a known intersection that had sufficient traffic to require traffic controls, was not acting as an ordinarily prudent person in making an approach at a rate of speed that made it impossible to stop within 45 feet without locking the brakes and going into a four-wheel skid, and that such speed would contribute to Miss Babb’s failure to avoid striking Young’s automobile at the intersection. See Seay v. Kana, Tex.Civ.App., 346 S.W.2d 384, n. w. h., in which excessive speed was held to be negligence in an intersection collision.

The jury, upon what appears to be ample evidence, found that Miss Babb was negligent. The first point of error is overruled. Points Two and Three are also overruled, as the evidence appears sufficient to support the jury’s finding, and the preponderance and weight thereof is not overwhelmingly against it.

In Appellant’s Reply Brief, with respect to Point Four, the first sentence of his argument states:

“Appellee artfully dodges the real point relied on by Appellant; namely, the asymmetrical submission of speed of each of the parties,”

and in the next paragraph says:

“ * * * This Court cannot step around the fact that the same act of negligence was submitted two different ways.” .

From this argument it is clear that appellant’s real objection to the submission of Special Issue No. 15, as made by the trial court, was that an identical fact plead by the appellant was submitted in a different form from that in which the appellee’s issue was stated. Examination of appellant’s motion for new trial shows that the asymmetrical submission he complains of now was not assigned as error. Failure to make a proper assignment waives any error in this respect. Rule 374, Vernon’s Annotated Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.

FANNING, J., concurs.