Safeway Stores, Inc., of Texas v. Webb , 1942 Tex. App. LEXIS 512 ( 1942 )

The writer has found it impossible to discuss the questions, deemed to merit discussion, in such way as to be understandable without stating the six different grounds of recovery (or if a less number, one or more repetitions) constituting the alleged cause of action. Such grounds of recovery may be stated as follows:

(1) That "the driver of the defendant's truck stopped said truck on the paved part of the highway, out of the limits of any city or town. That it was night time and the weather was misty and damp and the truck had no tail lights and there was no reflector on the truck and nothing to give warning that it had stopped on the highway."

(2) That "defendant stopped the truck in violation of law in that the truck was parked or stopped on the paved and the main traveled portion of the highway and on the side of same on which plaintiffs' automobile was driving. That it would have been possible, on the occasion in question, for said truck to have parked off the said main traveled portion of the highway or [sic] sufficient distance off the main traveled portion thereof to have permitted other vehicles to have passed in safety, all in violation of sec. 10, art. 827a of the Penal Code [Vernon's Ann.P.C.]."

(3) That "the driver of said truck also violated said penal statute in that the said driver parked his truck without leaving as much as 15 feet distance for other vehicles, in which to pass on the main traveled portion of the said highway * * * that the paved and main traveled portion of the highway in question at the point in question was 20 feet wide and that the defendant's truck was parked approximately 1 1/2 feet to the right of the center line of said highway leaving only 11 1/2 feet distance in which vehicles proceeding in either direction might pass."

(4) That "defendant was negligent * * * in not having lights on the rear end of its truck."

(5) That "defendant * * * was negligent in stopping the truck without having suitable and visible reflectors on said truck."

(6) That "the defendant's driver, on the occasion in question, knew that there was a car approaching him from the rear, at the time that he stopped, and it was negligence on the part of said defendant to have stopped said truck at all under the conditions of weather prevailing at that time, with the knowledge that there was a car following at the back of his truck."

These grounds of recovery may conveniently be referred to by numbers as above.

Of the ten points mentioned in the majority opinion, which are deemed to merit discussion, I shall reserve to the last points 1, 2, and 3, which, as stated in the majority opinion, really involve but one question, namely, the want of evidence to show negligence.

In my opinion, points 28 and 30 should be sustained. Point 28 is to the effect that the court erred in submitting special issue No. 3 calling for a finding of whether the "act of defendant's truck driver in parking the truck on the paved portion of the highway was negligence" because the undisputed evidence showed that the defendant's truck driver did not park its truck on said highway, but merely stopped momentarily.

Point 30 is to the effect that the court erred in submitting special issue No. 5 calling for a finding of whether "defendant's truck driver parked defendant's truck on the paved portion of the highway just prior to the collision in question, without leaving as much as 15 feet clearance on the main traveled portion of said highway for other vehicles to pass" because defendant's truck driver had not parked his truck, but merely stopped it. It is true, defendant did not object to the submission of said issues upon such grounds, but the alleged errors were urged after the verdict as grounds for a new trial. The action of the court, the correctness of which is challenged, is that of overruling defendant's motion for new trial. The errors would no doubt be waived because of the absence of objections, but for a special provision of Rule 279. In that Rule it is provided that "A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict." The claims under consideration are, in substance and effect, claims made after verdict to the effect that the evidence was insufficient to warrant submission of the issues.

In grounds of recovery 2 and 3, to which the above issues related, a common element, essential to either, was the fact that the defendant's driver parked the truck on the highway. The duty involved in each of such grounds of recovery is one created by statute (Vernon's Ann.P.C. art. 827a). The subject matter of the statute is "parking". The word "park" is new, or, rather, an old word is used in the statute with a new and additional meaning. It is not defined by statute, and hence is to be understood as expressing the common or ordinary meaning of the word. Webster's International Dictionary defines it as follows: "2. To stop and keep (a vehicle esp. a motor vehicle) standing for a time on a public way, or to leave temporarily on a public way or in an open space, esp. in a space assigned for the occupancy of a number of automobiles. * * * 3. Hence, to set and leave in a public place, as he parked his bag at the club; also, to settle or establish esp. for a considerable time; as to park oneself on the veranda. Slang U.S."

It thus appears that "park" and "stop" are not synonymous. Stopping is but one element of parking, or, perhaps, more accurately speaking, the act of stopping initiates or marks the beginning of the more comprehensive act of parking. If, for example, the operator of a motor vehicle merely stops same to await the change of a red traffic light to green; if he stops at a highway intersection only in order to yield the right of way to another motorist, he, in our opinion, has not parked. Under the law of the road (P.C. art. 801(L) if a motorist approaching from the rear and intending to pass a train, interurban or street car, stopped to receive or discharge passengers, he must come to a "full stop"; but he is not required to park. If, harking back to "horse and buggy days", the rider or driver of a frightened horse or horses gives the signal to the operator of a motor vehicle which, by provision of the statute, imposes upon such driver the duty not to proceed further (P.C. Art. 801(I), that, in our view, does not impose upon him the duty to park the motor vehicle. If a motorist finds himself blinded by lights, dust or storm, or any temporary or momentary condition disabling him from seeing that he may proceed safely and stops not with a view to leaving his car standing for any considerable time, he has not parked.

In my opinion, point 44 should be sustained. It presents a contention to the effect that the evidence established conclusively that S. B. Roberts was, under the existing circumstances, driving at a dangerous rate of speed, and that, therefore, the verdict of the jury being to the contrary "was wholly unsupported by and contrary to the evidence." It was shown without dispute that at the time of the collision it was dark and raining and had been raining, off and on, for two or three days; that the highway was wet and slippery; that the windshield wiper was running; that as the Roberts car approached the place of collision at least one other car, with headlights on, was approaching from the other direction; that Roberts had subnormal vision. As a witness for plaintiffs he testified that he was watching because "I have to watch, I haven't an awful lot of vision." It was further shown, without dispute, that defendant's truck van was nearly 8 feet wide and of undisclosed height, but described by Roberts as "a big old van truck setting right in the road"; and that the van had reflectors on the rear end. Roberts, a witness for plaintiffs, when asked "How close were you to this truck when you discovered it" answered, "Oh, 30 or 40 feet." Miss Knight, another occupant of the Roberts' car and a witness for plaintiffs testified she was looking down the road, saw no lights, and when she saw defendant's truck "we were close enough to see by that time it [the collision] was unavoidable." "You couldn't do anything after you saw it?" she was asked, and answered "No." She said "I saw the truck as soon as it was possible" and that "then it was too late to avoid hitting it." Roberts, being asked, "Was there any way for you to avoid the collision after you saw it" answered "Well, I don't think so. I just don't believe there would be a way in the world to avoid it. There was another car coming down the road. It was a little too fast to do an awful lot of thinking, and when you are just that close to anything there is not much time to do an awful lot of thinking." Further asked whether if he had thrown on his hydraulic brakes his car would have stopped in 20 feet, he said "It would not, because a car won't stop that quick on dry ground." Being reminded of the car coming from the other way, he was asked, "You waited until that car got past you and then tried to turn to the left?" to which he answered, "Judge, there is no time to wait. With a car making 30 to 40 miles an hour and only got 30 feet to go, there isn't any time to wait."

Such is an outline of the circumstances under which the following testimony should be considered. Roberts, as a witness for plaintiffs, when asked "What speed were you driving" answered "I would say between 35 and 40." Miss Knight, the other occupant of the car, answered the same question "Between 30 and 40 — we never got over 40." It seems to me that unprejudiced, unbiased minds cannot reasonably differ upon the proposition that it was dangerous for the driver of an automobile, with limited vision, driving in the dark, through rain, with windshield wiper running, meeting the lights of an approaching car from the other direction and unable to see a large truck van in the road ahead with at least reflectors on it further than 30 or 40 feet away, to drive at a speed of 30 to 40 miles an hour under such conditions.

I concur in the view that point 55 must be overruled on the ground that the error was waived by the failure to object to the submission of special issue 3 on the ground that the issue as it was stated assumed that the truck had been parked on the highway. Unlike the errors presented in points 28 and 30 the one here complained of goes to the manner and form of the submission and is waived by absence of objection, not being within the aforesaid special provision of Rule 279.

As already said, points 1, 2, and 3 really present but the single question, whether there was an absence of any evidence, in essential particulars, to raise any issue of negligence on the part of defendant's truck driver. A number of different factors complicate this question. The scope of the inquiry is, of course, generally defined and limited by plaintiffs' pleadings. Here it is further limited to some extent by the part of the verdict of the jury which was in favor of defendant. Other limitations result from collateral facts conclusively established by the evidence.

Of the grounds of recovery above listed as a total of six, it is doubtful if No. 5 should be regarded as a ground of recovery separate from, and additional to, No. 1. If by reason of the adjectives "suitable" and "visible" as modifying the word "reflectors" and the substitution of reflectors (plural) for "reflector" (singular), it should be so regarded, then it is deemed unimportant anyway because there was no issue raised by the evidence or submitted to the jury regarding the absence of reflectors or their unsuitableness or lack of visibility. Hence, ground of recovery 5 may be dismissed from further consideration.

Two essential elements in ground of recovery 1 were (a) stopping the truck, (b) without tail lights. The alleged negligence involved was determined by the jury in its answer to special issue No. 8 in favor of defendant. Hence that ground of recovery, except for its bearing on ground 4, next to be considered, may be eliminated from further consideration.

That defendant's driver stopped the truck before the collision, was a fact alleged by plaintiffs and admitted by defendant. Therefore, special issue No. 8 inquiring whether "defendant's truck driver stopped defendant's truck on the highway just prior to the collision in question, without having lights burning on the rear end of said truck" really only called for the jury to decide whether the truck was without rear lights. The verdict upon this issue being to the effect that the truck was not without rear lights, it results that ground of recovery 4 may also be dismissed from further consideration.

Grounds 2 and 3, for reasons already discussed, may be disposed of by merely reiterating that there was no evidence to raise an issue of the alleged fact that defendant's driver parked the truck on the highway. Plaintiffs had the burden of proving that defendant's driver parked the truck. They produced no evidence to show that the truck had been standing more than three or four seconds. If, as the only evidence shows, the colliding car was 75 yards behind when the truck stopped, and was going 40 miles an hour, then the time was 3.8 seconds. Considering the distinction hereinbefore made between parking and stopping, there was, in my opinion, no evidence to raise an issue that the car was parked in the sense necessary to establish liability under grounds 2 or 3.

If these conclusions be correct, then the task in hand is reduced to that of determining whether there was evidence to raise the issue of defendant's negligence as charged in ground of recovery No. 6. This ground was submitted in Special Issues 1, 1-A and 39. Special issue No. 1 was found to the effect that it was negligence for the defendant's truck driver to stop his truck at the time and on the occasion in question; special issue 1-A to the effect that such negligence was the proximate cause of the collision; and special issue No. 39 that the damages suffered was $5,000.

In stating special issue No. 1 some elements of the negligence pleaded were omitted, namely, the elements that "defendant's truck driver knew that there was a car approaching him from the rear at the time he stopped" and "the conditions of weather prevailing at that time." Their omission is no doubt accounted for by the fact that they were conclusively shown by the evidence.

The situation now under consideration should be carefully distinguished from the familiar one of two motor vehicles traveling in the same direction, one close behind the other and the foremost stopping too suddenly, its driver being able to signal his intention to stop, but failing to do so. That kind of situation is governed by a provision of the Law of the Road (P.C. art. 801(K) which imposes a duty upon a motorist "before stopping" to "see first that there is sufficient space for such movement to be made in safety" and "if the movement or operation of other vehicles may reasonably be affected by such * * * stopping" he "shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions to * * * stop." Manifestly, that statute can have no application to this case. It can have no application to the driver of any motor vehicle when such motor vehicle has never been seen while in motion by the driver of the approaching car from the rear. The statutory duty of a driver to signal before stopping and the co-relative right of the motorist following in the rear to rely, to some extent at least, upon the signal being given, enables the latter to follow at a closer distance than otherwise he could do without being guilty of negligence. In the instant case, there could have been no reliance upon the signal of an intention to stop, since the truck was already stopped when first seen. No action of the driver or occupants of the colliding car could have been induced by reliance upon a stop-signal being given. Under the undisputed evidence it was the bare fact of the presence of the truck standing still on the highway and not any act of stopping same suddenly or otherwise which provided the obstruction into which the car in which deceased was riding crashed.

It is to be observed that this 6th ground of recovery did not include as one of its elements the stopping of the truck, without signaling the driver's intention to stop. Evidently it was recognized that no effective signals could have been given. It is, no doubt, the theory of plaintiffs that the inability of defendant's driver to give such signals effectively gave rise to a duty of the driver to continue driving without stopping.

It may be well at this point to inquire as to the nature of the duty which was owing by defendant's truck driver to plaintiffs' deceased daughter. No duty, no actionable negligence, may well be regarded as a maxim of the law of negligence. Independent Eastern Torpedo Co. v. Carter, Tex. Civ. App. 131 S.W.2d 125, and authorities therein cited. If, as alleged as part of the 6th ground of recovery, it was negligence under the circumstances stated to have "stopped said truck at all", what was the duty which was violated by stopping? Whatever the duty was, or however it may be stated, it is certain that it would have been discharged, if it existed, by the truck driver going forward without stopping. For present purposes, therefore, we may consider the duty involved as being concretely the duty not to stop, which may otherwise be stated as the duty to continue driving forward upon the highway. The facts alleged to imply the duty (no duty being alleged expressly) are that the driver knew that there was a car approaching him from the rear, at the time he stopped, and "the conditions of weather prevailing at that time." In the final analysis, the conclusion is inescapable that the wrong, if any, of which defendant's truck driver has been adjudged guilty and defendant held liable to pay damages, was failure to outrun the automobile coming behind him.¹

The record of the evidence in this case, appraised in the light of the pleadings, the verdict of the jury and the other relevant factors, is strongly impressive of the fact that defendant has been adjudged liable for damages when the only thing regarded as wrong, of which there is any evidence to show, was an excess of caution on the part of its truck driver.

Plaintiffs had the burden of proof upon the issue that the stopping of the truck was negligence. In addition to the facts hereinbefore detailed as being conclusively shown by the evidence is the fact that a gasoline tank truck (truck with tank altogether about 40 feet in length) was stuck in the mud on the right hand side of the road in a jack-knifed position; that is to say, the tank was approximately at right angles to the highway; and the truck parallel thereto, headed north, with head lights shining. Another car was stalled on the same side of the highway to the south. Defendant's truck driver stopped his truck 4 or 5 feet short of the point even with the end of the gasoline tank; and before the first motor vehicle which he was meeting had passed the collision occurred.

There was a conflict in the evidence as to whether the hind end of the gasoline tank projected to any extent over the 20 foot paved portion of the highway. There was evidence to support a finding that it projected a few inches, and other evidence that it was clear of the pavement from 18 inches to 3 feet. It is this conflict in the evidence which is relied on by plaintiffs to show that there was evidence sufficient to raise the issue of negligence in question. In my opinion, that is a false issue. Under the undisputed evidence the inference that the truck driver stopped because it reasonably appeared to him to be unsafe not to stop is more reasonable than the inference that he stopped for some other reason, being at the time able to see and seeing that he could safely proceed before the oncoming cars had passed.

It is believed to be a settled and foreclosed question that evidence of such character is insufficient to raise an issue to be submitted to a jury. Houston T. C. Ry. Co. v. Harris, 103 Tex. 422, 128 S.W. 897; Texas Pacific Fidelity Surety Co. v. Hall, Tex. Civ. App.101 S.W.2d 1050, and authorities therein cited, and Safety Cas. Co. v. Walls, Tex. Civ. App. 117 S.W.2d 879.

With the evidence in such condition, it was wholly wanting in at least one respect essential to support a finding of negligence on the part of the truck driver. Further, evidence having the effect of showing that defendant's driver could see and did see that there was no obstruction on his half of the road was, I think, necessary. Instead of such evidence was the evidence of conditions under which the driver or the car behind could not see defendant's truck a greater distance than 30 or 40 feet; and could not see the facing lights on the stated tank truck off the pavement to his right.

Defendant's truck being 8 feet wide, the driver had a narrow play of only 2 feet to get off the pavement to his right in the mud, or over on the other half of the 20 foot pavement in the track of approaching cars to his left. In the face of oncoming lights, through the rain, it would appear to be a matter of physical impossibility for the driver to have seen clearly the real situation, such as measurements in the light of the next day may have shown. The approaching lights of the automobiles on the driver's left and the lights of the stalled tank truck to his right, if not partly projecting on the pavement, certainly near to it and manifesting road trouble of some kind, called loudly for the exercise of caution. The driver exercised caution by stopping. Because the plaintiffs raised an issue of fact that by measurements made in the light of day the truck driver could have proceeded without danger, in my opinion, does not raise an issue of the negligence alleged.

¹ In all the 56 points in defendant's brief, there is not one making a contention to the effect that there was no evidence — or that the evidence was conclusive to the contrary — that stopping the truck was a proximate cause of the collision. The evidence showed conclusively that the act of stopping the truck was not a cause of the collision, and, since a proximate cause must first of all be a cause, there was, therefore, no evidence that the act of stopping the truck was a proximate cause of the collision. To make this clear, let us suppose the truck, instead of stopping, had slowed down to 3 miles per hour. Surely that would have involved no wrong; and yet all the evidence which may be claimed to show that stopping was a cause of the collision would be equally as effective to show that the collision would have occurred just the same, caused by running so slowly as 3 miles per hour. In the sense it was contended that stopping the truck was the proximate cause of the collision, the real cause was the presence of the truck on the road. There certainly could be no valid contention that defendant did not have the right to have the truck on the road. However, our jurisdiction to determine this question has not been invoked.