Barnes v. Price , 1949 Tex. App. LEXIS 1907 ( 1949 )

On Appellant’s Motion for Rehearing.

On rehearing, this court has stricken from its original opinion herein, near the bottom of page 4, paragraph (1), the expression “did or should have so seen him”, which was inadvertent, as well as possibly misleading, and has inserted in place thereof, “did so see him”.

Despite appellant’s earnest arguments to the contrary, it is again held that the evidence did raise the issue of discovered peril for the jury, and that its answer thereto, favorable to the appellee, should not be set aside.

Indeed, it seems clear that the appellee-boy’s testimony, which was in substance recited in the former opinion, especially when taken with that of the appellant’s only witness other than himself, Mr. Stern, who testified that the appellant had not arrived at the intersection when he himself first saw the boy, and that appellant was driving in the second lane from the north curb, next to the double stripe thereon, instead of in the first or north lane thereof, plainly presented such issue.

If appellant was: just prior to the collision, in the position the appellee and Mr. Stern thus both testified he was, instead of the much closer to the boy and further to the north position he himself said he was, the jury was justified in finding that he did see the boy in ample time to have either turned his car into the north lane on Wayside, or have stopped before striking the boy, since the latter, according to his own testimony, had already turned west to his left, thereby easily preventing the collision.

The motion for rehearing is refused.