White's Auto Stores v. Boaz (166 S.W.2d 942, 1942)

JACKSON, Chief Justice.

Mary A. Boaz, a widow, the surviving wife of Asa Boaz, deceased, with the three children of herself and her deceased husband as plaintiffs, instituted this suit in the District Court of Wilbarger County .against the defendants, Charles H. Avery and White’s Auto Stores, a partnership composed of W. Earl White, Tom C. White, W. A. White and George C. Adams. None of the plaintiffs secured a recovery •except Mary A. Boaz and inasmuch as the other plaintiffs do not complain of the judgment we will give no further attention to any claim presented by the children or the disposition thereof.

Mary A. Boaz, the surviving wife, hereafter called the appellee, recovered a judgment against the defendants for damages in the sum of $6,000 alleged to have been .sustained by her on account of the death of her husband, which she contends was the direct and proximate result of the negligence of the defendants. The defendants .alleged numerous acts of contributory negligence any one of which would defeat the appellee’s claim for damages.

No complaint is made of the sufficiency of the pleadings and we deem it unnecessary to state in any detail the allegations of appellees’ cause of action or the acts of contributory negligfence pleaded as a defense since the cause of action and defense as pleaded are revealed in the special issues submitted by the court and the answers of the jury thereto.

The testimony shows that Highway No. 183 extends between Oklaunion, Texas, and Davidson, Oklahoma, and is intersected about four miles north of Oklaunion by a country road which is graveled a short way from the highway. The highway runs in a northerly and southerly direction but in this opinion we shall refer to such directions as north and south and we shall refer to the directions of the country road as east and west. About 8 o’clock p. m. on May 8, 1941, Asa Boaz was walking west on the graveled road approaching the paved highway. The defendant, Charles H. Avery, at the same time was driving a truck south on Highway No. 183 approaching the intersection. By the graveled road on either side of the highway there was a stop sign warning those entering the highway of the danger from passing traffic. About the same time an unnamed gentleman driving an unidentified car, hereinafter called the unknown car, north on the highway had passed the intersection and Mr. W. L. Clifford was following some three or four hundred yards in the rear. Mr. S. L. Duncan lived three hundred yards west of the intersection on the country road and at the same time was out in front of his house looking toward the intersection. The unknown car and the truck driven by Mr. Avery passed, according to the estimate of the different witnesses, from 100 to 300 feet north of the intersection. Mr. Boaz, while crossing the highway, was struck by the truck driven by Mr. Avery and died from the collision.

The court instructed the jury to find Charles H. Avery, who was driving the truck of the defendant, guilty of negligence because he was approaching the intersection- at a speed in excess of 25 miles per hour. The jury found that this speed of Avery, instructed by the court to constitute negligence, was a proximate cause of the collision and death of Asa Boaz. The jury also found that the defendant Avery failed to keep a proper lookout for persons and vehicles as he approached the intersection of the country road with Highway No. 183; that such failure .was negligence and a proximate cause of the death of the deceased; that the defendant failed to slow his truck when passing the unknown car north of the intersection; that such failure was negligence and a proximate cause of the collision; that by the exercise of ordinary care the defendant Avery could have passed the deceased by driving to the left or east side of him and such failure was negligence and a proximate cause of the injury; that the defendant Avery immediately prior to the collision was operating his truck at an excessive rate of speed; that the excessive speed was negligence and a proximate cause of the injury; that the defendant Avery failed to slow his truck as he approached the intersection of the graveled road and the highway but that such failure was not negligence and not a proximate cause of the injury; that the defendant Avery did not fail to have his truck under proper control as he approached the intersection of the road and the highway; that the defendant Avery, after passing the unknown car north of the intersection, did not fail to exercise ordinary care and prudence in turning on the bright long-range headlights of his truck; that the deceased did not step from behind the unknown car into the path of the truck driven by Avery; that he did not fail to keep a proper lookout for the truck driven by the defendant Avery prior to .going-on the main traveled portion of Highway No. 183; that he saw the truck driven by Charles H. Avery at the time the deceased approached Highway No. 183; that at the time he so approached the highway he proceeded on across the intersection but, notwithstanding he saw the truck and proceeded to cross the intersection of the highway, such acts were not negligence and not the proximate cause of the collision; that the deceased Asa Boaz, as he approached Highway 183 did not fail to stop to ascertain any oncoming traffic that was on the highway; that he did not fail to keep such a lookout as an ordinarily prudent person would have kept while he was on the intersection of Highway 183 and the graveled road.

On these issues" the court rendered judgment for the appellee, Mary A. Boaz, for the sum of $6,000 and this judgment is presented for review on proper points assigned as error.

The finding of the jury that Avery failed to slow his truck as he passed the- unknown car was negligence and a proximate cause of the death of the deceased is too remote to sustain the judgment of the court for damages. This is made certain by the fact that the jury found that Avery failed to slow his truck as he approached the intersection of the graveled road and Highway 183, but that such failure was not negligence and not a proximate cause of the collision. The finding of the jury that immediately prior to the collision the defendant was operating his truck at an excessive rate of speed and this was negligence and a proximate cause of the injury cannot furnish a basis for sustaining the judgment because the jury found that Avery did not fail to have his truck under proper control as he approached the intersection of the graveled road and the state highway. Northeast Texas Motor Lines, Inc., v. Hodges, 138 Tex. 280, 158 S.W.2d 487, by the Supreme Court is authority for the conclusion last announced.

The appellants by proper motion requested the court to direct a verdict in their behalf because the testimony was insufficient to show that the defendants were guilty of actionable negligence and for the reason that the evidence shows that the deceased, Asa Boaz, approached the main traveled Highway No. 183 in the night on a country road and that stop signs had been duly erected warning Mr. Boaz to stop before entering upon the highway and exercise caution for his own safety and in failing to do so was guilty of contributory negligence as a matter of law.

Without discussing the sufficiency of the testimony to sustain one or more of the negligent acts of which the jury found the appellants guilty and a proximate cause of the death of deceased, we have concluded that the record shows Mr. Boaz was guilty of contributory negligence as a matter of law and^ appellee is not on account thereof entitled to recover.

The record shows without dispute that the locomotion of the deceased was not defective; that he had no physical or mental impairment; his sight and hearing were normal; that he had lived in the vicinity for some years, knew of the highway and that quite a bit of travel passed over it both day and night. Highway No. 183 is a cardinal highway and traffic thereon therefore has the right of way over traffic going upon the highway over country roads entering it from the sides. Stop signs had been placed on either side of the highway to warn the public, one of whom Mr. Boaz was, of the danger of driving or walking onto the highway from a country road entering -it on the side. These stop signs were silent admonitions to travelers to take proper precaution for their 'own safety. It was at night and dark. There was nothing to obstruct the view of Mr. Boaz either north or south of the intersection and there was nothing to interfere with the view of Mr. Avery.

In Southland-Greyhound Lines, Inc., v. Richardson, Judge, et al., 126 Tex. 118, 86 S.W.2d 731, 733, Commissioner Smedley approves the definition of contributory negligence, which reads as follows : “ 'Contributory negligence’ is such an act or omission on the part of the plaintiff, as amounting to a want of ordinary care and prudence, as concurring or co-operating with' some negligent act or omission, if any, of defendant, is a proximate cause of the injury.”

If a pedestrian prior to going on a highway takes suitable precaution for his own safety it is a fact issue as to whether he exercised ordinary care in going upon such highway but, if he goes upon a cardinal highway where traffic thereon has the right of way over travel entering the highway from the side without the exercise of ordinary care to avoid injury to himself, he is guilty of contributory negligence as a matter of law. Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, 932. In the last case cited the court says: “It is now a matter of common knowledge that cardinal highways of the state are designed and constructed primarily for rapid transit thereon by motorcars; and that this character of vehicle has come to be the universal and almost exclusive means of transportation over such highways.”

We desire to add to the statement quoted that it is a matter of common knowledge that traffic on a cardinal highway such as 183 is accorded the right of way over traffic going on the highway from the side on a country road.

Mr. Clifford, who was the first party on the scene after the collision, and who was the first witness called by the appellee, after testifying that he saw Mr. Boaz about 6 or 7 o’clock in the afternoon of the accident and stating he was following this unknown car, testified that he was two or three hundred feet south of the intersection and the unknown car was about ISO to 200 feet north of the intersection when he observed Mr. Boaz as he .approached the highway on the graveled road and “from the best observation I had of it Mr. Boaz was approaching or had approached this road intersecting the highway from the east as near the center of the graveled road as I could tell. He was in motion crossing the concrete slab.” The following interrogatories were propounded by the attorney for appellants and the witness gave the following answers:

“Q. As you drove up there where was Mr. Boaz the first time you saw him? A. You mean on my approaching the road intersecting the highway?

“Q. Yes, sir. A. He was just entering the highway.

“Q. He was just entering the highway? A.' Yes, sir, was my first view of him. * * * He possibly could have been on the gravel. He was either on or .near the concrete.

“Q. And when you first saw Mr. Boaz he was standing approximately at a point near the east line of the highway? A. Yes, sir.

“Q. Was he standing still on the east side when you first saw him or was he moving? A. He was in motion.

“Q. Was he running or walking? A. He was walking the best I could tell.

“Q. Did he stop when he g