Full opinion text
R. L. MURRAY, Chief Justice. This is an appeal by Roy Lee Lumber Company et al., appellants, from a judgment against them in the district court of Jefferson County in favor of Thomas N. Green, appellee, in a suit for damages arising out of an automobile-truck collision. The appellee Green was driving his car south on Fourth Street in the City of Beaumont, accompanied by three fellow workmen. He stopped his car and parked it on Fourth Street between Laurel Avenue and South Street. The car was stopped on the right-hand side of the street near the curb. Green was seated at the wheel and opened the left car door to get out of the car into Fourth Street. At some time during the commission of the act of getting out, or attempting to get out, of his car the truck of the appellants Roy Lee Lumber Company, and driven by the appellant Willis King, came south on Fourth Street across Laurel Avenue and came in contact with Green’s car. Green’s car was damaged and he, himself, received physical injuries for which he was treated by his physician. The truck was a flat bed truck and was loaded with 20 sacks of cement, each weighing 94 pounds and 4 yards of sand, each yard weighing approximately 2,200 pounds. King was driving the truck in the ordinary course of his employment for Roy Lee Lumber Company, delivering the cement and sand on a mission for the lumber company. At the point where Fourth Street crosses Laurel Avenue, going south, Fourth Street makes a jog to the east, and as a result the curb lines of Fourth Street on the south side of Laurel Avenue are approximately 10i/i feet east of the curb lines of Fourth Street on the north side of Laurel Avenue. The appellee sued the appellants, alleging that above and other matters in detail as to the cause of the accident and alleged that the driver King was negligent (1) in failing to keep a proper lookout; (2) in failing to have his vehicle under proper control; (3) in operating said vehicle too close to Green’s vehicle; (4) in operating his vehicle at an excessive rate of speed under the circumstances and (S) in operating said truck in excess of 30 miles per hour in violation of the ordinances of the City of Beaumont. He also alleged that such acts of negligence were a direct and proximate cause of his injuries and damages. He alleged physical injuries to his back, left hip, left leg, neck and cervical spine and left shoulder; that he had incurred the necessary medical expense and that his automobile was damaged and broken. He sued for all of his injuries and damages. The appellants answered by general denial and special denial that King, the driver of the truck, was guilty of any acts of negligence and denied that any act or omission on the part of the driver caused or contributed to cause the injuries or damages to Green, and alleged further that Green was guilty of contributory negligence on his part. They also pleaded an unavoidable accident and further pleaded that any injury or damage sustained by Green was brought about by a new and independent cause. Appellant King also specially answered that he was driving in his proper lane of traffic, going south on Fourth Street in the City of Beaumont, and the front part of his truck and cab had passed the place where Green’s car was parked when. Green suddenly and without looking to his rear, opened the left front door of his car, striking the truck about midway the body of the truck; “that said door was opened without the plaintiff in any way looking to his rear or looking to the side of the car” to see whether the car door could be safely opened and that such act constituted a violation of the ordinances of the City of Beaumont; that all said acts of negligence were the proximate cause of the occurrence complained of by the appel-lee. The case was tried to a jury and at the conclusion of all the testimony, the appellants filed a motion for instructed verdict which motion was overruled by the court. The case was submitted on special issues and the jury by their verdict found in answer to such special issues that (1) Thomas Green was injured as a result of the occurrence in question; (2) that appellant King failed to keep his truck under proper control ; (3) that such failure was a proximate cause of the collision; (4) King failed to maintain a proper lookout; (5) such failure was a proximate cause of Green’s injuries and damages; (6) that King operated his truck more closely to Green’s car than a person of ordinary prudence in the exercise of ordinary care would have operated it; (7) that such operation was approximate cause of the collision. The jury by Special Issue No. 8 did not find that Green failed to keep a proper lookout before attempting to open the door of his car. In answer to Special Issue No. 10 the jury did not find that Green was negligent in opening the door and attempting to get out of his car on the left-hand side. In answer to Special Issue No. 12 the jury did not find that the door of appellee’s car was opened by Green into the truck. In answer to Special Issue No. 15 the jury found that the accident in question was not the result of an unlawful accident. They further found that medical services furnished Green were reasonably necessary and to No. 17 that a reasonable charge therefor was $300; to No. 18 the jury found that $165 was a reasonable amount for the repairs made necessary to Green’s car as a result of the collision. In answer to Special Issue No. 19 the jury found that $9,000 is a sum of money that would fairly and reasonably compensate Green for the injuries proximately caused by the negligence of the appellants, including loss of earnings and physical pain and suffering. In the charge itself the trial court defined the terms “proper lookout” and “proper control”. After the verdict of the jury was received the appellants filed a motion for judgment notwithstanding the verdict, which motion was overruled. The court entered judgment in favor of the appellee against the appellants for the sum of $9,465. The appellants filed their motion for new trial and their amended motion for new trial, which amended motion was overruled by the court and the appellants have duly perfected their appeal. Appellants bring their appeal under 86 points of error. Appellants contend that the trial court erred in (Point 1) overruling their motion for instructed verdict, (Point 2) overruling their motion for judgment non obstante veredicto, (Point 3) refusing to grant their motion for judgment non obstante vere-dicto, contending that the undisputed evidence established that appellee Green opened the door of his car into the truck with the door of the car striking the right-hand side of the bed of the defendants’ truck at a point approximately one-third of the distance behind the front end of the bed of the truck and that such act of Green in opening his car door into the truck was negligence and a proximate cause of the occurrence; (Point 4) in failing to disregard the answer of the jury to Special Issue No. 2 for the reason that there was no evidence that the appellant King failed to keep his truck under proper control. The appellants have grouped the above points for discussion and argument in their brief. We shall also consider them together, as did the appellee in his reply brief. We shall also consider with the above four points appellants Points Nos. S through 29, inclusive, because in our opinion all of the first 29 points of appellants’ brief are concerned with the sufficiency of the evidence to support the jury’s findings that appellant King failed to have his truck under proper control and failed to maintain a proper lookout, and that such failures and omissions were a proximate cause of the appellee’s injuries and damages. Appellants have carefully and zealously presented their main contention that the evidence did not show any negligence on the part of the truck driver King or that any acts or omissions of King were a proximate cause of this accident and they raise it in several different forms of attack. In the course of these various contentions under Points 5 to 29, inclusive, they assert, too, that the evidence shows as a matter of law that Green’s act in opening his car door into the truck was negligence and a proximate cause of the accident. For instance, as to the question of whether King failed to have his truck under proper control, they say by various points: the trial court erred in failing to disregard the jury’s finding that King failed to keep his truck under proper control, that the court erred in overruling their objection to Special Issue No. 2, which objection was that there was no evidence to warrant the submission of the issue, nor to show any improper driving which caused or contributed to cause the accident, that the court erred in overruling their objection to said Special Issue No. 2, which objection was that the undisputed evidence showed that the accident happened when Green opened the door of his car into the body of appellants’ truck which was then passing the parked car; they say the ■court erred in failing to disregard the answer to Special Issue No. 2, because the finding was so against the great weight and preponderance of the evidence as to be clearly wrong and should be set aside; that the court erred in overruling their objection, to the submission of said Special Issue No. 2, which objection was that any affirmative finding that King failed to maintain proper control will be so against the great weight and preponderance of the evidence as to be clearly wrong; that the court erred likewise in failing to disregard the answer of the jury to Special Issue No. 3, (that the failure of King to keep his truck under proper control was a proximate cause) contending that there is no evidence that such failure was the proximate cause; that the court erred in overruling their objection to the submission of Special Issue No. 3 in the charge, such obj ection being that there was no evidence to show any improper driving by King or that any act or omission by him was the proximate cause; they say the court erred in failing to disregard the answer of the jury to Special Issue No. 3, because the failure, if any, of King to keep his truck under proper control was not a proximate cause as a matter of law, for the reason that the proximate cause was Green’s act in opening the door of his car into the truck; they also say the court erred in overruling their objection to the submission of said Special Issue No. 3, which objection was that the undisputed evidence showed that Green and all the witnesses for him did not observe the appellants’ truck until after contact or collision and the contact between the door of the car and truck occurred immediately at the time the door was opened, and defendant’s failure to maintain proper control could not have been a proximate cause as a matter of law; they likewise contend that the court erred in failing to disregard the answer of the jury to said Special Issue No. 3, because such finding is so against the great weight and preponderance of the evidence as to be clearly wrong; they say the court erred in overruling their objection to the submission of Special Issue No. 3, such objection being that any finding of the jury that the failure of King to maintain proper control was a proximate cause would be against the great weight and preponderance of the evidence and clearly wrong; they likewise contend that the court erred in failing to disregard the jury’s answer to said Special Issue No. 3, because there was no competent evidence to discharge the burden of proof on appel-lee to show by a preponderance of the evidence that the failure of King to keep his truck under proper control was a proximate cause, and they say the evidence is insufficient to discharge such burden of proof; they also say that the court erred in overruling their objection to the submission of said Special Issue No. 3, which objection was that the burden of proof is on the ap-pellee and the evidence is wholly insufficient to discharge such burden and to show failure to maintain proper control by King. The appellants then, beginning with Point 17, make similar and varied attacks as to the evidence in regard to Special Issue No. 4, which dealt with the finding that King failed to keep a proper lookout, and Special Issue No. 5, that such failure was a proximate cause. They also assert errors on the part of the trial court because of its failure to disregard the answers of jury to, and in overruling their objection to the submission of, Special Issues Nos. 4 and 5. Such points are similar in substance to the points dealing with Special Issues Nos. 2 and 3, as detailed above. It, therefore, becomes necessary to set out a great deal of the testimony. Both the appellants and the appellee have quoted in their briefs a great deal of testimony, all of which we have read and considered. We have also read the entire statement of facts. Joe Azar, who was riding on the front seat of Green’s car with Green at the time of the accident testified as follows: “Q. After Tom drove up and stopped the car, what did he then do ? A. Well, he aimed to get out of his car, he looked back, I was sitting in the front seat with him, and I looked back too, to see anything coming, so he opened the door and at that time I heard a hit, that truck came by. “Q. What happened to the door? A. The door was all brushed in. “Q. Tell us what happened to the door when it hit it. A. Well, the door was all brushed in. Glass flew up in my face, and Tom fell back in the car. I say— “Q. You say Tom fell back in the car? A. Yes, sir. “Q. Did he have one foot out of the car at the time? A. Yes, sir. “Q. You say he had looked back and had one foot out of the car and opened the door? A. Yes, sir. “Q. Put one foot out of the car? At that time the truck hit the door ? A. Yes, sir. “Q. How badly was that door folded up, Joe? A. Well, it was in.bad shape. “Q. Was it folded six inches under, a foot, two feet, or what? A. Well, as I was going to say, I would not know how wide it was, it was all crushed in, yes, sir. “Q. It was all crushed in? You say Tom was knocked back in the car? A. Yes, sir. “Q. Then what did Tom do? A. Well, we stood there, and he says, ‘Looks like the driver is not going to stop’ so he drove back and crossed the next block and stopped, then he got out of his truck, and looked around his truck, and got back in his truck and went on. “Q. Then what did Tom do? A. Tom and Skipper got in Skipper’s car, and went on behind him. “Q. Skipper was the man that owns that garage — A. Yes, sir. “Q. —across the street? A. Yes, sir. “Q. You say Tom and Skipper got in Skipper’s car and took out after the truck? A. Yes, sir. “Q. Before Tom got into Skipper’s car, did he say anything when he was knocked back into the car? A. Yes, sir. He said he was hurt. * * * “Q. About how close to the curb was Tom’s car parked? A. Oh, I imagine about four or five inches.” On cross examination Azar testified in part, as follows: “Q. All right, Now, when you drove up there and stopped on Fourth Street across from Skipper’s. garage, what did you do ? A. What did I do? “A. Yes. A. I was sitting in the car. “Q. You were sitting in the car? A. Yes, sir. “Q. On the front seat? A. Yes, sir. “Q. On the right? A. Right, sir. “Q. Was anybody else in the front seat? A. No, sir, just me and Tom Green. “Q. Who was in the back seat? A. Nolan Barnard and Leslie Apple. “Q. What side was Leslie Apple sitting on? A. I will tell you, I don’t remember. I know they were both in the back seat. “Q. You don’t know what side Joe Barnard was sitting on or on what side Leslie Apple was sitting on? A. No, sir, I don’t. “Q. All right. Now, as you drove up there, what did Thomas Green do? A. Thomas Green looked back. “Q. Did you see him look back? A. Yes, sir. I looked back myself. “Q. How did he look back? A. Turned and looked, opened his door. “Q. Did you notice he looked in his rear view mirror? A. I would not know whether he looked at the rear view mirror Dr not. He turned his head and looked. “Q. Was the door opened when he turned his head and looked ? A. He was opening the door. “Q. Oh, he was opening the door as he turned his head? A. That is right. “Q. This crash happened the very minute he opened the door, didn’t it? A. Well, a few seconds after the door was opened, I reckon. “Q. The very minute he opened the door the crash happened, didn’t it? A. Well, I wouldn’t say that, because he did not open the door and jump out, he was opening the door and coming out. “Q. All right. Now, before he started to open that door, did you see him look back? A. Yes, sir. “Q. Before the door was ever opened? A. At the time he was opening the door. “Q. All right. Now, before he ever opened the door? Did you see him look back? A. Well, he looked back at the time he was opening the door. I would not say he was looking before the door opened. “Q. Do you understand my question? A. Yes, sir. “Q. All right. Answer it. Now, did you see Tom Green look back before he started to open that door? A. Well, I wouldn’t say that. I seen him look back and open the door. “Q. You saw him look back and open the door at the same time, didn’t you? And he did not look back until he had the door open, did he? A. I wouldn’t know about that, I say he opened the door and— “Q. And was looking back at the same time, is that right? A. Yes, sir. “Q. All right. Did you look back? A. I looked back when he looked back, and a few seconds later, — 'Bang!— “Q. You looked back at the very minute when he opened the door, is that right? A. I looked back when he looked back. “Q. You looked back when he looked back? All right. That is clear enough. Now, did you ever see this truck? A. No, sir. “Q. Could you see all of the way back up to Fourth to Laurel Street, from where your car was parked, back behind the car? A. Yes, sir. “Q. And when you looked you didn’t see this truck did you? A. No, sir. “Q. You didn’t see this truck until after the (counsel slaps hands) after the impact, did you? A. No, sir. “Q. That was after the impact, the truck had gone on down the street, was the first time you saw the truck, wasn’t it? A. That is right. “Q. Now, if that truck had been behind your car at the time you looked, there was not anything to keep you from seeing it, was there? A. I don’t think so. “Q. You could see all the way down to Fourth Street, couldn’t you? A. Fourth Street? “Q. I mean to Laurel Street? A. Yes, sir. “Q. You could see all of the way to that traffic light, couldn’t you ? A. That is right. “Q. Now, do you know how far it is from where you had your car parked to where that traffic light is? A. No, sir. I would figure maybe over a hundred feet, but I don’t know how far. “Q. You don’t know how far? If that truck had been down there at Fourth Street, you would have seen it, wouldn’t you? A. Well, if it would have been there I would have seen it, I imagine. “Q. Yeah. If it had been there you would have seen it? If it was right opposite you, you did not have a chance to see it until after you opened the door, did you ? A. It wasn’t opposite me. “Q. Now, if that truck was down there at Fourth Street when — it was behind the car, would Green have had any trouble seeing it? A. If it had been where, sir? “Q. If the truck had been back behind the car at Fourth and Laurel Street, would Green have been able to see the truck? A. I imagine so, nothing to block it. “Q. Would you have been able to see it? A. I think so if it had been there. “Q. You think so? A. Yes. “Q. Now, Azar, you don’t know whether the door of the car came in contact with the truck or whether the truck came in contact with the door, do you? A. I sure don’t. “Q. You can’t tell the jury here today whether the door was opened into the truck or whether the truck struck the door? A. I sure can’t. “Q. All right. Now, you don’t know what part of the truck this door came in contact with, do you? A. No, I don’t. “Q. To this very day? A. I sure don’t. “Q. You don’t know whether it hit the body of the truck or whether it hit the front end of the truck, do you? A. I sure don’t. “Q. Now, did you see this truck stop? A. Yes, sir. “Q. And after the truck stopped what did the driver do? A. He got out of the truck, looked all around his truck and got back in the truck and went on. “Q. All right. But he did stop, didn’t he? A. Yes, sir. “Q. Now, Joe wasn’t knocked down, was he, (or Tom) ? You call him Joe Green also call him Tom Green? A. Yes, sir. We always call him mostly Joe Green. “Q. Mostly Joe Green? A. Yes, sir. “Q. He was not knocked down, was he ? A. Well, he fell back in his seat. “Q. You don’t know whether the truck came in contact with him or not, do you? A. I sure don’t. “Q. He didn’t have any open cuts on him, did he? A. I didn’t see any. “Q. You didn’t see any? You didn’t see any blood around there, did you? A. No, I didn’t. “Q. Now, this car that you were in, it stayed parked, it didn’t move, did it? A. I sure did not feel it move. “Q. You didn’t feel it move, the car wasn’t knocked up over the curb, was it? A. No, it wasn’t. “Q. Now, the first time that you saw this truck was after you heard the noise and the truck had passed down in front of the car in which you were sitting, is that right ? A. Yes, sir. That is right.” On re-direct examination he further testified: “Q. Joe, just a minute. Were there any cars coming from south traveling north on Fourth Street? A. I did not see any. “Q. Did you see any cars at all on Fourth Street except you-all’s car and this truck? A. That is the onliest car I seen at that time. “Q. I mean just before and at the time of the collision? A. Yes, sir. “Q. Afterwards, I guess a few vehicles came by? A. Yes, sir, some of them passed by. “Q. How far would you say the truck went down before it stopped? A. It went past the next block, went and stopped. “Q. Do you know the name of the next street south of Laurel? A. No. I sure don’t. * * * “Q. Now, about what speed was this truck traveling? You said you did not sec it until it struck the car. About what speed was the truck traveling when you did see it? A. It was traveling— “Q. I thought you said you saw the truck immediately after it struck the car, then go on down to the next block, did you? A. Yes, sir. “Q. Then you had occasion to view that truck as it left the car and went on down the street, didn’t you? A. Yes, sir. “Q. State to the jury about what speed the car — the truck was traveling. A. Well, it was traveling faster than thirty miles an hour, to my estimation.” C. A. Kohler, a surveyor and civil engineer, testified as follows: “Q. Did you, at my request, go out to the intersection of Laurel and Fourth Street in the City of Beaumont and make some measurements yesterday? A. I did. “Q. Do you have a sketch with you outlining those measurements and those street intersections? A. I do. “Q. Can you tell the ladies and gentlemen of the jury how far it is — (Pardon me. Strike that question) Generally speaking, what direction does Laurel Street run ? A. East and west. “Q. And, generally speaking, what direction does Fourth Street run? A. North and south. “Q. How far is it from the south curb of Laurel, which runs east and west, to the north side of a building on Fourth which building has on the side of it the numbers ‘270’ ? A. 134 feet. “Q. Did you have occasion to look in that little building to see what type of work was going on in there, whether it was garage work, or something else? A. No. I did not. “Q. How wide is Fourth Street at this little building — yes, Fourth Street, at this little building? A. The street paving is 36 feet wide. “Q. Now, on the west side of Fourth Street is the west cu'rb of Fourth, south of Laurel, is it a straight line up to Laurel, or does it curve, make an angle? A. Fourth Street jogs at Laurel Street. The distance from the east curb line of Fourth Street south of Laurel to the east curb line of Fourth Street north of Laurel would be 46 feet, — 46 and a half feet, — correction. “Q. Do you have a sketch we might look at, talking about this thing ? A. I do. “Q. We might put this on the wall. (Bailiff produces blackboard) May we erase this? (Referring to sketch on blackboard) (Places drawing on board) Can you ladies and gentlemen of the jury see this all right? Is it clear enough? This sketch you have drawn, does that represent the intersection of Laurel and Fourth? A. It does. “Q. I will point to the north of it, it is supposed to be north? (Indicating) A. That is right. “Q. And bottom south? A. Right. “Q. (Indicating) A. East. “Q. That is west? (Indicating) A. West. “Q. This is Laurel Street running east and west, Fourth Street running north and south? A. That is correct. “Q. Now, I believe you said awhile ago from south curb of Laurel to the north side of this little building with ‘270 Fourth Street’ on it, was how many feet ? A. 134 feet. “Q. 134 feet? How far is it from the south line of Laurel on the west side to the place where it makes a break-away from the straight line of Fourth? A. 70.5 feet. “Q. That is to this point here ? . (Indicating) A. That is correct. “Q. Then, of course, the distance from that point to the south line (I mean north line of this building) would be the difference between 70.5 and 134? A. That is correct. “Q. Now, do you have the distance from the west curb of Fourth to the east curb of Fourth south of Laurel ? A. Along the south line? “A. Yes. A. Fifty-one feet, three inches. “Q. I believe you said the width of Fourth here at this building was how much ? A. Thirty-six feet. “Q. Did you measure the width of Fourth Street north of Laurel? A. Yes, thirty feet. “Q. Now, is that the distance up here before it begins to make this out? A. That is correct. “Q. Up here it is thirty feet. Now, the distance across, did you measure this at the intersection of Fourth and Laurel? A. That is correct. It is forty-eight feet. “Q. Now, that appears to give a jog in that Fourth Street, is that correct? A. That is correct. “Q. Suppose — and did you calculate the projection of the east line of east curb of Fourth Street north of Laurel, project it south if it had been drawn in a straight line, how far west of the west line of Fourth would it come? A. Ten and a half feet. (Counsel takes pencil, draws on drawing on board). “Q. So, if the east line of Fourth north of Laurel had been projected directly south it would have reached a point ten and a half feet west of the west line? A. That is correct. “Q. Do you know the name of the street south of Laurel, the next street south? Is that South Street? A. South. “Q. Is that a regular City block in between Laurel and South? A. I can’t remember, it is not unusually different. “Q. It would be— A. Approximately three hundred feet. “Q. You did not actually measure it? A. I did not measure it and I do not remember exactly. “Q. Do you' know the distance this little building is from the east curb of Fourth? A. Eighteen feet. “Q. Was there a telephone post at the intersection of Fourth and Laurel (we call that the ' southwest intersection) ? A. There was a pole there, but it was not a ’telephone, it was put there to hold the traffic light. “Q. About what was the diameter of that pole? A. I would say ten inches. “Q. Now, was there a pole also on the west side of Fourth some distance past the break in the west side of the curb of Fourth ?. A. • There was. It was a power pole. “Q. About what was the thickness of it, diameter of it? A. About twelve inches. “Q. I don’t suppose you — Have you measured the width of an ordinary car, can you give.u's your estimate? Most of know about how wide they are. Give us your estimate of it. A. I believe six feet, four ■inches. “Q. I believe we will say six feet, parked along the west curb of Fourth Street, driver of it sitting behind the wheel would be over a distance of about four feet from the curb, at least four feet, is that correct? A. The driver would be about four feet from the curb, that is correct. (Counsel writes on drawing) T0¡^> ft.’ “Q. So, that would put the driver fourteen feet from the east curb of Fourth Street sitting in his car here in front of this building, this ten and a half. A. That would be the east curb projected south, that is correct. “Q. Put him about forteen feet east of the east curb of Fourth, wouldn’t it? A. That is correct. “Q. Now, the west curb of Fourth Street, north of Laurel, if projected south, directly, being thirty feet from the east curb of Fourth would then make it 40j/£ feet from the west curb of Fourth Street from Laurel on the south side, is that correct? A. That is correct. (Counsel writes on drawing) ‘40i/-> ft.’. “Q. How did you arrive at this place east when you undertook to make these calculations and these measurements? A. I don’t understand the question. “Q. How did you arrive there, walk or ride in a car, or what? A. I drove out there. “Q. You drove in a car? A. Yes. “Q. Was that car parked in the vicinity of this little building here? A. That is correct. “Q. Was it parked approximately directly across the street, something like that? A. That is correct. “Q. Did you have occasion to get behind the steering wheel of that car and look in the rear view mirror and see what you could see behind you? A. That is correct. “Q. I will ask you', being behind the steering wheel of that car, looking in the rear view mirror, what do you see behind there ? A. Among other things, you could see the approximately the western edge of the filling station, and the eastern side of Fourth Street on the north side of Laurel. “Q. There is a filling station here ? (Indicating) A. Yes. “Q. Having been marked ‘Magnolia Filling Station’? A. Yes, that is correct. “Q. Sitting in the car, looking in your rear view mirror you would see this filling station and east curb of Fourth Street? A. That is correct. “Q. You could not begin to see the west curb of Fourth Street up there, could you? A. Not without hunting for it. “Q. You are familiar with the fact that traffic is ordinarily supposed to travwl on its side of the street, if going south they travel on the west side, is that correct ? A. That is correct. “Q. And traffic on Fourth would of necessity travel on the west side of Fourth, west of the center line? A. Going south, that is correct.” On cross examination he also testified: “Q. Now, Mr. Kohler, if you sit in an automobile, or you are driving an automobile and you look in your rear view mirror, can you observe the full width of a highway, as you are driving down it, to your rear? A. That is correct. “Q. All right. Then, normally, on a three or four lane highway you can observe the whole highway, can’t you? A. Generally speaking, yes. Now, of course, that means a certain distance back from the car. “Q. Now, if when you looked in your rear view mirror, as you sat there, opposite this building here — where was your car parked when you looked back ? A. Almost exactly where that little sketch is, or across from the building No. 270. “Q. In other words, it was closer to the intersection than the building itself? A. Slightly, yes. “Q. You could see all the way back to this point here and beyond, couldn’t you? (Indicating) A. Yes. “Q. And how far over on this side could you see ? (Indicating) A. By moving your head you could see all of it. “Q. In the rear view mirror ? A. Yes, by swinging your head from side to side you could see all of it, and then some. “Q. All right. Actually, if you were looking to the rear in your rear view mirror you could see all of the way down here, couldn’t you? (Indicating) A. That is correct. “Q. From this point here? (Indicating) A. That is correct.” Nolan Barnard, who was in the car with Green at the time of the accident testified as follows: “Q. Did you all have occasion to stop there near Skipper’s garage? A. That is right, across the street. “Q. Then you stopped directly across the street from Skipper’s garage ? A. Yes, sir. “Q. About what time of day was it? A. About 9:20 — it was 9:20 or 9:30. “Q. Where, in the car, were you sitting? A. Sitting in the back on the driver’s side. “Q. About how far back was the car parked from the west curb of Fourth Street? A. West curb of Fourth Street? “Q. How far was it from the curb? A. Two or three inches. “Q. About how far was the car from Laurel Street ? A. Better than a hundred feet from Laurel Street. “Q. You say it was better than a hundred feet? A. Yes, sir. “Q. You did not measure it? A. No. “Q. Just estimated it? A. Just estimated it. “Q. And where were you sitting in the car? A. On the driver’s side in the back. “Q. On the driver’s side in the back? Behind Thomas Green? A. Yes, sir. “Q. Did you see a truck that struck that car door? A. Did I see him when he struck the car door, yes, sir. “Q. Had you seen the truck before he struck the car door? A. No, sir. “Q. Were there any cars coming from the south going north? A. No, sir. “Q. At the time the truck struck the car door were there any other cars on your side of the street there on Fourth? A. No, sir. “Q. Then, just the car you were in and this truck were the only vehicles there? A. Yes, sir. “Q. Did you say you didn’t see the truck before it struck the car? A, No, sir. “Q. Did you see it after it struck the car? A. Yes, sir. “Q. About what speed was the truck traveling after it passed the car and went on down the street? A. I would estimate he was driving about forty. “Q. You say about what? A. About forty miles an hour. “Q. About forty miles an hour? Did the truck stop further on down the street? A. Yes, sir. It did. “Q. About how far down the street was it where the truck stopped? A. It was about half a block, it stopped just across the next street. It crossed the next street and stopped. “Q. What did the truck driver do? A. Got out of his truck, came around, looked outside, went back and got in his truck and drove off. “Q. When that truck hit the car door where was Tom Green, was he all of the way out or partly out? A. He wasn’t all of the way out, he was partly out, wasn’t all of the way out. “Mr. Weller: What was that answer? A. I say he wasn’t all of the way out of his. car. “Q. He was part out? A. I say the top part of his body was— “Q. What did that lick of the truck against the car door do to the car door? A. It folded it. “Q. Can you describe how it was folded up? A. The center part was folded inside of the car. “Q. You mean the center part of the door was folded into the inside of the car ? A. Yes, sir. “Q. About how wide was the door after it was hit, was it a foot wide, two foot wide, or how wide? A. I could not say exactly but it was about a foot wide, I imagine.” On cross examination he testified, as follows: “Q. You did not see this truck until the actual contact with the door with the truck, did you? Isn’t that right. A. Yes, sir. “Q. Now, did you ever look to the rear? A. No, sir. I didn’t. “Q. You didn’t look to the rear? A. No, sir. “Q. You did not see Thomas Green look to the rear either, did yoú? A. No, sir. “Q. And you were sitting right there behind him, wasn’t you ? A. That is right. “Q. Now, as he turned to open the door, he turned to his left, didn’t he? A. That is right. “Q. And just opened the door like that, didn’t he? A. Well, I was not paying that close attention. “Q. What? A. I was not paying that close attention. “Q. You were not paying that close attention? But the very minute he opened the door it came in contact with the truck, didn’t it? A. Well, I could not say the very minute. I was not paying that close attention. “Q. You were not paying that much attention? Well, it was after the contact that you looked up and saw the truck? A. I seen the truck after the contact. “Q. After the contact? A. It came in contact. “Q. .Right at the very time of the noise is when you looked up and saw it, isn’t it ? Isn’t that right ? A. (no answer audible) “Q. Now, there wasn’t any part of Green’s body out of that door that you saw, was there? A. No, sir, not as I seen it. “Q. Huh? A. Not as I seen. “Q. As you saw it all of his body was still inside of the car, wasn’t it? A. The top part of his body, the biggest portion of it, I could not say exactly what it was— “Q. Well, you are not telling this jury that part of his body was outside of the car, are you? A. No, sir. “Q, Because you did not see it? A. I did not see it. “Q. The best you could tell that at that time all of his body was in the car, wasn’t it? A. The top part of his body.” * * “Q. Now, you don’t know what part of the truck came in contact with what part of the car, do you? A. No, sir. “Q. Now, you don’t know whether the door hit the bed of the truck or the bed of the truck hit the door, do you? A. Well, the door was already open, it must have been the truck hit the door, the door was opened.” The appellants’ counsel here questioned the witness about his answers in a deposition previously taken. On further cross examination he testified as follows: “Q. The only time that you saw Willis Green make any effort toward looking to the side was the very minute he opened the door, wasn’t it? A. I did not see him the exact time when he opened the door. I seen him when he had the door opened and he had his head to the side. “Q. He had his head to the side and that is all you saw? A. That is all I seen. “Q. At this very moment (slaps hand) this noise occurred? A. Yes, sir.” Finis Rountree testified, as follows: “Q. On or about December 21st of last year just before Christmas for whom were you working? A. For the City of Beaumont. “Q. And what were you doing for them? A. Well, I was a truck driver and pusher for the clean-up gang on city parks. “Q. You say you were a pusher, also driving a truck for the Park Department, City of Beaumont? A. Yes, sir. “Q. Did you have occasion on December 21st of 1954, last year, to be at the intersection of Laurel and Fourth Street in that truck? Where were you going at that time? A. To the City barn. “Q. At about what time of the morning was it? A. Little after nine o’clock. “Q. Was there anyone in the truck with you? A. No, sir. “Q. And you were proceeding out west on Laurel? A. Yes, sir. “Q. Did you intend to turn off Laurel at any place? A. On Fourth Street. “Q. As you approached the— Is there a traffic control light at the intersection of Laurel and Fourth Streets? A. Yes, sir. “Q. Is it one of these automatic signals, electric signals hanging in the middle of the street? A. Yes, sir, sure was. “Q. What signal did you have, red or green, as you approached there? A. I had green. “Q. As you came up to that light did you still have the green. A. Yes, sir. “Q. Did any vehicle come south on Fourth Street as you went through that light ? A. Yes, sir. • It did. “Q. And what kind of vehicle was it? A. It was a truck. “Q. Can you describe it? What color? A. Well, it was kind of an old model truck, not too old, but loaded with sand, or something to that effect. “Q. And at the time that truck went under that light going south on Fourth, what light did you have ? A. I had green. “Q. You still had a green light? A. Yes, sir. “Q. And if that signal light was operating properly it reflected red on Fourth Street, is that correct? A. Yes, sir. “Q. What did you do ? Did you have to bring your truck to a stop or not? A. If I hadn’t it would have been me in that wreck. “Q. If you hadn’t it would have been you in the wreck? A. Yes, sir. “Q. About what speed was this truck going as it went under that light? A. I would judge it was going forty miles an hour. “Q. Have you had any experience in judging speeds of vehicles? A. Yes, sir. I have. “Q. What sort of experience have you had? A. I was an M.P. all of the time I was in service. “Q. Did that bring you in contact with the matter of judging speeds? A. Yes, sir., I was on jeep patrol. “Q. Sir? A. I was on jeep patrol. “Q. You were on jeep patrol? You have driven a vehicle for about how many years, would you say? A. Since I was sixteen. “Q. And you are how old now? A. Twenty-six. “Q. Now, after that truck ran under that light, did you see it in contact with any vehicle down on the street? A. Yes, sir. I did. “Q. And what part of the vehicle was it in contact with? A. The left door. “Q. The left door. What did the truck do, did it run in a straight line, swerve, or did it make a curve out here? A. Came over to the left, then veered back to, the right. ■ “Q. The truck after it passed the car veered to the left, then back to the right? A. Yes, sir. “Q. And it hit the car door of that car parked there? A. Yes, sir. “Q. Where did the truck then go? A. Just the other side of the next intersection. “Q. Did it or not stop ? A. He stopped. “Q. What did he do? A. He just got out and walked around to the back, and I thought that he was coming back to the car, and I parked my truck in the meantime. I got out and started back to the car and when I looked around I didn’t see no truck. “Q. You mean the truck had driven off? A. Yes, sir. “Q. Did you go back to this car, or did you just go in the vicinity of it? A. I just went in the vicinity of it. I didn’t go completely up to it, but I was in twenty feet of it. “Q. You were within twenty feet of it? A. Yes, sir. “Q. Did you see other people around there? A. Yes, sir. “Q. You did not go up to the car? A. Not completely. “Q. What was the reason for that? A. Well, there was a lot of colored people came out there, and I never mixed with them too much, and I did not figure it was none of my business. “Q. And you were going to the job. A. Yes, sir. I was taking a lawn mower to the barn to have it repaired. “Q. Did you or not have men working under you waiting for it? A. Yes, sir. “Q. Now, after you saw these people gathering around there you got back in your vehicle and left ? A. And went on to the barn.” On cross examination he testified: “Q. Mr. Rountree, were you stopped waiting for the light ? A. No, sir. “Q. How far down Laurel Street — Had the light changed as you approached the traffic signal? A. Well, it changed when I was quite a ways from it. “Q. Well, how far? A. Oh, approximately a hundred feet. “Q. Changed when it was approximately a hundred feet away ? What signal was up there when you approached? A. Green. “Q. What signal was up there when you were a hundred feet away? A. Yellow. “Q. What? A. Yellow. “Q. Yellow? A. Yes, sir. “Q. Is it your testimony that as you approached that light when you were a hundred feet away the light turned from red to yellow and then from yellow to green ? A. No, sir. “Q. What is it? A. It turned to green. “Q. When you were a hundred feet away did you observe a yellow light up there? A. No, sir, I don’t believe so. “Q. What did you observe up there?' A. ' When I was over a hundred feet away it was red. “Q. It was red? A. Yes, sir. “Q. It was red from what to green, red to green? All right. And you were about a hundred feet away when you say that changed, went from red to green? A. Yes, sir. Maybe not quite that far. “Q. Maybe not quite that far? Now, what rate of speed were you driving? A. Approximately between fifteen and twenty miles an hour. “Q. Between fifteen and twenty miles an hour? Don’t you know that when — the way the Beaumont traffic lights are set up that when you are facing a red light that before it comes on green there is a caution light facing traffic the other way, do you know what I mean? In other words, you are facing a red light, and that light changes directly from red to green? It never does show a caution light from red to green, does it? A. I don’t believe it does. “Q. Sir? A. How was that again? “Q. How long have you driven in the City of Beaumont? A. About four years. “Q. About four years? All right. You drive quite a bit around traffic lights? A. Not too much. You drive backwards and forwards.” * * * “Q. All right. So while you were within a hundred feet, or less, of that intersection there was a red light up there, wasn’t there, facing you ? A. I had a green light facing the direction— “Q. Well, when you got to the intersection it had turned green, hadn’t it? A. It was green. “Q. But when you were within a hundred feet of that intersection you had a red light up there, didn’t you? A. It might have been, more or less. “Q. All right. Then, more or less. A. Yes, I did not have no way of telling it. “Q. Now, this other truck could just as well have been crossing on a caution light, couldn’t it? A. Not with the length of time because when I entered the intersection the light was definitely green. “Q. Now, you say that you saw the truck come in contact with the door of this-car. Where were you at the very time you observed the contact? A. Just as I turned into the intersection, I had just got back. “Q. Well, let’s see. We have got a plat here which has been introduced in evidence. Will you come over here? This is going south on Laurel. West on Laurel. South on Fourth Street. (Indicating) A. You mean the one over there? (Indicating) • “Q. If I understand it correctly you were malting a left turn from Laurel on to Fourth? Would you mark on there with this pencil the location of your truck when you say that you saw this other car, hit the truck, and the car come in contact ? A. Where was I at when I saw the actual collision? “A. Yeah. A. I had just turned into here, just got straight about here. This is a one way street. I was there. I was nearly in the middle of the intersection when this truck went by. I had just come up, gotten straightened up here. (Indicating) “Q. This represents your truck, as you marked it here? A. Yes, sir. “Q. Would you put a ‘T’ there? A. Whereabouts do you want it? “Q. Right up above it, beside it. That is the location of your car at that time? Go ahead. Take your seat. Now, you just tell me what you saw when your truck was at that point. A. Well, I used a few bad words, I expect, for it darn near run into me, when it swerved over to the left, it seemed he went too far to the right before he straightened up. “Q. What did he— A. I could not see any great advantage what did it, because he was so close to the car that it knocked my vision off the side of the car with the side of his truck with the impact. “Q. All right. Then, you didn’t actually see the door of the car open, did you? A. No, sir. I didn’t. “Q. All right. And you didn’t see the actual part of the truck — or what part of the truck — which came in contact with the door, did you? A. No, sir. I was in back of the truck. “Q. You were in back of it and your view was obscured, wasn’t it? A. Yes, sir. “Q. And actually you can’t tell this jury whether the truck was opposite that car or the door was opened into, or whether the door was opened first or not, can you? From what you saw? A. No, sir. I couldn’t.” The appellee Thomas N. Green testified in regard to the accident, as follows: “Q. And as you traveled south on Fourth you crossed Calder, and crossed Liberty, and Broadway, then you get to Laurel, you crossed Laurel? A. Yes, sir. “Q. We have been talking about Laurel and Fourth Street? A. Yes, sir. “Q. You understand Laurel Avenue runs east and west? A. Yes, sir. “Q. And Fourth Street runs north and south? A. Yes, sir. “Q. You traveled south on Fourth? A. Yes, sir. “Q. At what point did you stop your car? A. I stopped it right around I estimated it about 130 feet from that Laurel. “Q. You stopped the west side about 130 feet south of Laurel? A. Yes, sir. “Q. In front of what place of business did you stop? A. In front of Skipper’s garage, a colored fellow called Skipper. “Q. How close to the curb did you stop ? A. I was jamming the curb, right up against the curb, about two or three inches. “Q. After you had stopped your car what did you then do? A. I stopped my car, and I looked through my rear view mirror, then I turned around like that, and — er ah — I looked around, I did not see nothing, and I opened the door and got out, had one foot on the ground, and this happened. “Q. When you looked in the rear view mirror did you see any truck coming or any other vehicle? A. No, sir. I didn’t. “Q. When you turned and looked, and opened the door did you see any truck coming? A. No, sir. I didn’t. “Q. You say you put your left foot out? A. Yes, sir. “Q. Was it on the ground at the time? A. Yes, sir, it was on the ground. "Q. Then what happened? A. Well, all of a sudden something hit me from the back, I don’t know what it was, whether it was a truck or what hit me, something hit me. (Slaps hands.) “Q. What part of your car was struck by the truck? A. Sir? “Q. What part of your car was struck by the truck? A. The door was mostly, the door. “Q. And what did it do to the door? A. Well, uh, instead of — er ah — see, I didn’t have it open too wide, had it opened about like that, truck hit it, when it hit it instrad of swinging the door around, you see, it sort of rolled it this way, all that way, rolled it around. “Q. Just mashed it into the car? A. Yes, sir. Sort of rolled it, it carried it. “Q. About how wide was the door after the truck hit it? A. Sir? “Q. How wide was the door after the truck hit it? A. I don’t know, sir. I could not say. “Q. Did it injure any other part of your car? A. Well, uh, my aerial sits right there— “Q. You mean the radio aerial? A. Yes, sir. It cut it off and bent the fender there. “Q/ What happened to you, you had one foot out, what happened to you ? When this lick came ? A. Well, it sort of knocked me back in against the steering wheel. I was sort of scrumbling, trying to get out. “Q. Did what? A. I was sort of ■scrumbling, trying to get back into the car. “Q. After that, what did you do? A. Well, er ah — I was there leaning up against the car, you know, the steering wheel. “Q. Did you get out of your car? A. Sir? "Q. Did you get out of your car? A. Not all completely. No, sir, I just got back in, when — er ah — when I looked up, well, I could see the truck stopped in the next block. “Q. Did you see what the man did that parked the truck in the next block? A. Sir? “Q. Did you see what the man driving that truck did, what did he do? What did he do after he went down there and parked the truck? A. Well, er ah — he got out, walked around the truck, looked around, and looked back at us, and went on. “Q. Was there any kind of noise made by the impact of this truck against your car door? A. Yes, sir, there was a noise. “Q. What kind of noise, was it a loud noise, or otherwise? A. Not too loud a noise that I can remember.” On cross examination he testified: “Q. Thomas, you did not see this truck before the contact, did you? A. No, sir, I didn’t see it. “Q. You didn’t see — the first time you saw this truck was after contact and when it was already out in front of your car going down the street, wasn’t it? A. Yes, sir. “Q. Now, I believe you testified on direct examination that you looked in the rear view mirror ? A. I did. “Q. When you looked, what did you see? A. I didn’t see anything when I looked in the rear view mirror. “O. How far back down the street could you see ? A. I could see plumb back to Fourth. “Q. Plumb back to Fourth? Could you see all of the way up into that filling station there on the corner? A. Well, practically.” * * * “Q. All right. Could you see if you looked in your rear view' mirror, could yod see all of the way to that filling station? A. I could see the front of the filling station. “Q. You could see the front of the filling station? Could you see anything over here on the left of this filling station? A. I could see the outside of this next curb. “Q. You could see that curb over there? All right. Now, did you see anything at all in the way of a truck or car all of the way back to this intersection? A. To what intersection? “Q. To the Laurel and Fourth Street. You mean up under the light? A. Yeah. Up under the light. I could see if something was coming up under the light. “Q. You could see if something coming under the light? A. I could see if anything coming up under the light. “Q. You observe that in your rear view mirror? Now, when, — after you looked there, did you look any more before you opened the door? A. Yes, sir. “Q. How did you look then? A. I turned around and looked back and I looked back towards Laurel. ■“Q. After you looked back in the rear view mirror then you turned around and looked back? A. And looked back. “Q. You could see all of the way back to Laurel Street, couldn’t you? A. Yes, sir. “Q. You could see all of the way back there to the far side of Laurel, couldn’t you? A. Well, I couldn’t see back to the far side, but I looked as far as Laurel Street and the light. “Q. You looked as far as Laurel Street and the light ? Was there anything to keep you from seeing? A. No, sir. There wasn’t nothing. “Q. There wasn’t anything? All right. And then as you turned and opened the door did you look any more? A. Well, no, sir, I had — I had — I had just looked. “Q. What is that? A. I had just looked in my rear view mirror and looked back and— “Q. All right. And did you then open the door? A. Yes, sir, opened the door. “Q. The collision occurred right at the very minute you opened the door, didn’t it? A. No, sir, not that very minute, not right at the very minute. “Q. Not right at that very minute? When did it happen ? How soon after you opened the door? A. Well, I could not say about how soon, it happened, but I had time enough to open my door and put this leg on the ground before it happened. Yes, sir. “Q. As you opened the door did you look? A. As I was opening the door. “Q. Yeah. A. Well, I wasn’t — I had already looked at the back already. “Q. How was it that you never did see this truck until after it was out in front of you, if you looked? A. I don’t know, sir. I just did not see it. “Q. You just didn’t see it. A. I did not see it. “Q. That is the only explanation you have got, isn’t it ? A. When I looked back I did not see nothing, when I looked in my rear view mirror. “Q. And then you opened the door ? A. I opened the door, and tried to get my hand out— “Q. And the truck was right there,, wasn’t he? A. Well, I didn’t say he was right there, but I had time to get out, put this foot on the ground. “Q. Actually, Green, you don’t know whether the car door came in contact with the truck as it was passing or whether the truck came in contact with the door, do you? A. I don’t — No, sir, I did not open the door on the car because I had chance to open the door and had the foot on the— on the — because if I had opened the door I would have kept the truck from — -I got this foot on the ground. “Q. Now, you didn’t see the truck before the collision so you did not make any effort to get back in the car, did you? A. I never did see the truck, so, sir, coming behind me. “Q. You never did see the truck? A. I never did see the truck. “Q. If you had looked you could have seen that truck, couldn’t you? A. I did look, yes, sir, sure did look. “Q. All right. How long had you been parked there before you stopped there? A. I just drove up there, I wasn’t parked there long. “Q. Did you just drive up and stop, and look in the mirror and open the door? A.. I stopped, after I drove up there, I used my rear view mirror and I looked back, checking my hand, you know— “Q. Were your windows up on your door? A. No, sir. They were not up. “Q. Huh? A. My front window was down. “Q. Your front window was down? A. Yes, sir. “Q. Were any other windows in your ■car broken besides your front window ? A. No, sir, no other windows was broken. “Q. Now, when you crossed — I believe you said you came across Laurel Street, didn’t you? A. Yes, sir. “Q. On Fourth? A. Yes, sir. “Q. When you came across there was that light green? A. Yes, sir. “Q. As you were driving along did you -observe any truck behind you? A. No, sir. “Q. Did you ever see this truck? A. I never had seen it, no, sir. “Q. Did you see the City truck up there at the intersection? A. No, sir, I did not. “Q. (Referring to deposition) Now, when you opened that door, and put your foot out, you opened the door and put your foot out at the same time, didn’t you? A. Well, er ah — No, sir, I couldn’t .say I done both at the same time. I opened the door and then put my foot out. Well, now, Willis, — you remember you gave your deposition up in my office t'oo, didn’t you? A. Yes, sir. “Q. You have been over this testimony since you give it, haven’t you? A. Been over it? “Q. . Yeah. What you testified to in my office ? A. What you mean ? “Q. Well — A. Mr. Campbell just read it to me awhile ago, he wanted me to sign it. “Q. Well, was anything wrong with what he read to you? A. No, sir. “Q. Was there anything wrong with this now you testified to this: “ ‘And did you shove the door open and then put your foot out? A. Well, I was shoving it open and putting my foot out.’ “ T asked you this question: “At the same time ?” You said: “ ‘Yes, sir, because I had looked around this way, and looked in my mirror before I stopped, and didn’t see nothing.’ “Q. Now, did you look in your rear view mirror before you stopped? A. No, sir, I had stopped before I looked in my rear view mirror. “Q. After you stopped? A. Yes, sir. “Q. You did tell me before that you were putting your foot out and opening the door at the same time, didn’t you? A. 1 don’t remember telling you that. “Q. Well, is it true that you did do that? A. No, sir, I opened the door then I put my foot out. “Q. When you opened the door, did you look back then before you put the foot out or start to get out? A. No, sir. I looked in my rear view mirror and then I looked around and then I got out. “Q. Willis, you never did look back after you opened the door, did you ? A. No, sir, after the door was opened and I had my foot on the ground I did not look back. “Q. All right. Now, did you open the door immediately after you had looked to the rear? A. Well, not — you know, I opened it gently like a driver would come up, driving a car, if he was in the clear and opened the door and got out. “Q. Well, I asked you this before: (On Page 14 'You say you looked all the way back to the intersection of Laurel and Fourth? A. Yes, sir.’ “Q. That is right, isn’t it? A. That is where the light is: “ 'You didn’t see anything ?’ You answered: ‘No, sir.’ I asked you this question: ‘And then you immediately opened the door? You answered: Yes, sir.’ “Q. Now is that true? A. That I opened it, yes, sir, yes, sir, from the driver’s rear view— “Q. All right. A. And after I looked in my rear view mirror. “Q. And I asked you this further question : “ ‘At that time, immediately you opened the door, there was contact, wasn’t there ? And you answered: ‘Well, I had just opened the door to get my foot out?’ “Q. That is right, isn’t it? A. That I had opened the door to put my foot on the ground. “Q. And then there was contact, wasn’t there? A. Yes, sir. “Q. Now, you don’t tell this jury that this truck struck you, do you ? A. I couldn’t say what it was struck me. I couldn’t say, just like I told you in my testimony, I had my back to it, I couldn’t say what struck me. All I know I was hit.” The appellee introduced in evidence the deposition of the driver of the truck, Willis King, who testified: “Q. What time did you make this trip, Willis? A. Well, I had been down there one time; I don’t know definitely the time, but I had been down there one time and come back and got another load and then come back by the place and picked up the cement and stuff and then goes on back out there. “Q. Would you think it was about 9:30 in the morning? A. Well, I imagine so. “Q. Do you remember driving across-Laurel Street on Fourth? A. Yes, sir. “Q. Do you remember passing a car that was parked on the west side of Fourth Street there between Laurel and the next street south? A. Well, not exactly, but— now I do remember a noise as I was going: down Fourth Street * * * ” * * * “Q. Do you remember passing a car that was parked on the west side of Fourth Street there between Laurel and the next street s