Justiss v. Naquin (137 S.W.2d 72, 1940)

GRAVES, Justice.

Despite an inordinate record over all (inclusive of transcript, statement of facts, and briefs) of about 2,000 pages, this appeal — when reduced to its ultimate of issues material at this time — -is simply one from an aggregate judgment for $8,500 in favor of Ruby Lee Naquin, a minor, and her father, G. J. Naquin ($7,000 hers, $1,500 his), against appellants, J. F. Justiss and his employers, Hassie and Margaret Hunt (composing the partnership of Pen-rod Drilling Company), as for personal . injuries suffered by such minor and entailed expenses cast upon her father, in a collision in Anderson County between appellants’ car, driven by Justiss, and one owned by Mrs. Milam, and driven by Miss Rupp, in which the appellee-minor was riding.

A decree was entered, both upon a jury’s verdict on special-issues and independent findings of the court itself, the ultimate gist of all of which was that the collision had resulted from the concurring negligence of the two drivers of the respective cars, Miss Rupp and J. F. Justiss, the details thereof having been — severally stated— substantially as follows:

“(1) The negligence or Miss Rupp consisted, among other acts, in having steered her car off the pavement, after passing another car, and then cutting the car too sharply to the left to put it back on the pavement; in turning loose of the steering wheel as the car came back on the pavement, the car going at an angle across the eighteen-foot pavement, slowing down all the time, until the front half of the car was entirely off the pavement on the north or east side thereof and the car still im motion, when appellants’ automobile— driven by J. F. Justiss at a speed in excess of 45 miles per hour — approached and struck the Milam car on the right-hand side, toward the back end. The impact of the collision reversed the Milam car, without turning it over, and it rolled slowly down the shoulder of the road, and came to rest pointing in the opposite direction from that in which it had been travelling. At the point of collision, the paved highway extended in a general East-West direction. The collision occurred wholly on Justiss’ half of the highway, which some of the witnesses called the north side, and others ■ called the east side, of the highway. The jury found Justiss to be guilty of negligence, which proximately caused the collision: (1) In approaching the place of collision at a speed in excess of 45 miles per hour; (2) in driving with his car out of control as he approached the place of collision; (3) in driving with his car out of control at the very moment of the collision; and (4) in driving his car at a dangerous rate of speed at the very point where the collision occurred.”

The appellees did not sue Mrs. Milam and Miss Rupp, owner and driver, respectively, of the car carrying the minor, considering themselves in the circumstances precluded from so doing by Texas Vernon’s Ann.Civ.St. Article 6701-b; but appellants did sue them for contribution and indemnity, under averments that their own negligence in the collision, if any, had been passive, while that of Mrs. Milam and Miss Rupp had been active.

The trial court, however, before submitting the' jury-issues, peremptorily instructed a verdict in favor of'Mrs. Milam and Miss Rupp, which, as affected the trial below, took them out of the case; notwithstanding that action, the appellants perfected an appeal, pursuant to their action below, against those two ladies; but, since the original submission of the cause to this court, they have moved here for permission to dismiss that appeal, and upon consideration of the cause as a whole, it has been granted; wherefore, they are no longer involved.

In addition to the findings noted supra, the jury also determined the accident not to have been an unavoidable one, and that the appellants had not been guilty of certain additional acts of negligence under detailed specifications of the appellees that their driver, Justiss, had discovered the minor’s peril in time to have avoided injuring her, had he lived up to the new duties cast upon him by such discovery.

Appellants ably inveigh against the judgment on many grounds, the principal ones being,. in substance, these:

(1)Their motion for judgment non obstante veredicto should have been granted, because “as a matter of law, J. F. Justiss was not bound to anticipate that the driver of a car which was approaching him' from the opposite direction would lose control thereof and veer over on the wrong side of the road; and therefore the negligence-of Justiss could not be a proximate cause of the collision; that the presence of the Rupp car on the wrong side of the road was the sole proximate cause, and the acts' of the driver of the other car in losing control and driving over on the wrong side of the road, were new, independent causes; 'particularly so, since the jury found that J. F. Justiss did not fail to use ordinary care after he discovered the ’ perilous position of the occupants of the Rupp car.”

Substantially this same contention is repeated in another form by their subsidiary ones that the stated findings of negligence against Miss Rupp had, as a matter of láw, concluded the controversy in their favor, thereby disclosing the errors of the trial court, not only in having refused submission to the jury of their specially requested issues 398 to 402, inclusive, but also in overruling their motion for a new trial based upon the same grounds.

(2) That the court erred in its rulings upon the receipt • and exclusion of . testimony, in discarding res gestae declarations of Miss Rupp, immediately after the accident, to the effect that it had been her fault, that all of a sudden she had lost control .of her car, and didn’t know how it happened, etc.

(3) That the trial court reversibly erred in its definitions of “unavoidable accident”, “under control”, and “new and independent cause.”

(4) That there was prejudicial error