Hulsey v. Patterson (121 S.W.2d 509, 1938)

STOKES, Justice.

This is a suit for damages growing out of a collision between a motor truck owned and operated by appellee and an automobile owned by appellant. The record discloses that on the 20th of August, 1937, at a point in Floyd County, some three or four miles northwest of Floydada, late in the evening, appellee was driving his truck from Lockney to Floydada. There were three other persons with him in the truck and, upon reaching the point indicated, his gasoline became exhausted and the motor of his truck stopped. Upon discovering he was out of gasoline, appellee steered the vehicle to the right and when it came to a stop a portion of it was off of the paved portion of the highway, but the left rear corner and the left rear wheel were protruding over and resting upon the paved portion. Appellant was traveling in his automobile in the same direction and, before reaching appellee’s truck, another automobile,- with.-' its lights burning, appeared some distance down the highway, ap-* proaching from the opposite direction. Appellant did not discover appellee’s truck until he' -'was within a few feet of it and ■ upon ’ discovering it, he immediately turn^ ed his car to the left in an effort to-prevent a collision' with it. His car struck the: protruding comer of the truck, which cut its way through the right side of the body of appellant’s automobile, resulting in serious damage to its right side. Immediately after colliding with the truck, appellant’s car came in collision with thq automobile that was approaching from the opposite direction, causing considerable damage to the left rear portion of appellant’s car.

Appellant alleged that appellee did not at the time have the rear of his truck equipped with a red light as provided by Sec. -9 of Article 827a of Vernon’s Annotated Penal Code. In defending against this contention, appellee contended that the collision occurred at a time when there was sufficient light to render clearly dis-cerhable any person upon the highway from a distance of at least 200 feet, and that it was less than a half hour after sunset, wherefore, it was not necessary ■ .and he was not required under the law to have his tail light displayed as provided by the third paragraph of Section 9 of the article referred to.

The case was submitted to a jury upon special issues and, under the contentions of the respective parties, the court properly submitted special issue No. 6 in which the jury were asked if they found from a preponderance of the evidence that the collision happened at a time when there was not sufficient light to render clearly dis-■cemable any person upon the highway for a distance of at least 20.0 feet. The jury answered this special issue in the negative ■and, other issues not here involved being answered in favor of appellee, the court entered judgment for him. The controlling question in this appeal is involved in the jury’s answer to this special issue No. ■6. Appellant presents the case here upon a single assignment of error which is substantially to the effect that the answer of the jury to special issue No. 6 is contrary to the law and the evidence and is without support in the evidence.

Article 798 of the Penal Code provides that motor vehicles, .while on the public highways, during the period between a half hour after sunset and a half hour, before sunrise, and at all times when fog or other atmospheric conditions render their operation unusually dangerous to traffic, shall carry at the rear a lighted lamp exhibiting one red light, plainly visible for a distance of 500 feet to the rear. The evidence shows that upon the day and at the time of the collision the sky was overcast with clouds and it was sprinkling rain. It had been raining during the day and the shoulders and ditches on either side of the highway were muddy and soft. It is shown, and is also well known, that under such atmospheric conditions, darkness approaches "earlier than it does’when the sky is clear, and a. large portion of the evidence concerns the actual atmospheric conditions and visibility at the time