Adams v. Ramer (358 S.W.2d 638, 1962)

MURRAY, Chief Justice.

This suit was instituted by A. E. Adams as plaintiff against Franklin D. Ramer as defendant, seeking to recover damages resulting from a collision between an automobile driven by Adams and one driven by Ramer. The collision occurred upon Dwyer Road, which runs north and south between U. S. Highway 90 West and Medina Base in Bexar County, Texas. The Adams’ car was being driven in a southerly direction along Dwyer Road, and the Ramer car in a northerly direction along that Road. Adams estimated that his car was being driven between 35 and 45 miles per hour, and Ramer that his car was being driven between 45 and 50 miles per hour. Dwyer Road was about 40 feet wide and was paved, but had no center stripe marked upon it. At the time of the collision Ramer’s car was some six feet past the center of the road and on Ramer’s wrong side of the road. Adams’ car was on its proper side of the road. The cars met almost “left headlight to left headlight,” and were considerably damaged. The collision occurred about 10:30 p. m. on November 17, 1955. In answer to special issues, the jury found that Ramer was operating his automobile on the left-hand side of the road, but that such was not negligence ; that Ramer was not driving his automobile at a negligent rate of speed; that Ramer failed to keep such control of his automobile as a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and that such negligence was a proximate cause of the collision; that he failed to keep such lookout for others as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances, and that such negligence was a proximate cause of the collision. These findings are not challenged in any way and are binding upon us.

The jury further found that Adams did not operate his automobile across the center line of the highway, upon his left-hand side of the road; that he did not operate his automobile at a negligent rate of speed; that Adams did fail to keep such control of his automobile as a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and that such negligence was a proximate cause of the collision, and that Adams failed to keep such lookout for others as a person of ordinary prudence in the exercise of ordinary care, would have kept under the same or similar circumstances, and that such negligence was a proximate cause of the collision. Thus the plaintiff, Adams, was found to be guilty of two acts of negligence, that of failure to keep a proper control of his car and to keep a proper lookout, and that each was a proximate cause of the collision.

The trial court rendered judgment that Adams recover nothing from the defendant, Ramer, and that Ramer recover his court costs, from which judgment Adams has prosecuted this appeal.

The question here presented is whether or not there was any evidence to sustain the finding of the jury that appellant, Adams was negligent in not keeping his car under proper control, and in failing to keep a proper lookout. The burden of pleading and proving that Adams did not keep his car under proper control and did not keep a proper lookout was upon Ramer. McDonald v. Skinner, Tex.Civ. App., 347 S.W.2d 950. Negligence is never presumed for the mere happening of an accident. Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660. The mere happening of a collision is not of itself evidence of negligence and of proximate cause. Rankin v. Nash-Texas Co.r 129 Tex. 396, 105 S.W.2d 195.

It cannot be assumed that the driver of an automobile failed to keep his automobile under proper control and failed to keep a proper lookout unless there is some evidence of such fact. Groendyke Transport Co. v. Dye, Tex.Civ.App., 259 S.W.2d 747.

There were only two witnesses to this accident — appellant and appellee — the drivers of the two vehicles involved. Appellant described the unexpected presence of lights in front of him and on the wrong side-of the road, in this way: “The only reaction I had when I saw the lights coming at me was to get out of the way, if I could, because I knew somebody was in the wrong place and I knew I was on my ■side of the road and I tried to duck it but I didn’t have time.” “It looked like it just came over the top and headed right into me. I couldn’t see anything but some lights blinding me.” “It just happened awful quick.” “I didn’t have time.” The •appellee gave an identical version. He testified, “I come up over this little hill and the first thing I saw was the light.” His counsel asked him how much time ■elapsed from the time he first saw appellant’s lights to the impact, and appellee answered, “Just like that.” He said it was just long enough to blink your eyes. From this, it appears that appellee suddenly •appeared on the wrong side of the road ■and appellant had no time in which to see