Merritt v. Phoenix Refining Co.

SMITH, Chief Justice. This action was brought by C. H. Merritt and wife against Phoenix Refining Company for damages for the wrongful death of their son, Willard Merritt, when struck by an oil truck belonging to the Refining Company. The accident occurred early in the night of New Year’s Eve, 1934, a short distance south of the City of Kenedy, in Karnes County. The decedent was twenty-one years old at the time. The parties will be designated as in the trial court. Young Merritt and two of his friends, Verna Smith and Bobbie Brown, were leaving town in an automobile to attend a dance in another community. When they reached the place of the accident, they pulled their car off the paved roadway and parked there, to enable young Merritt to carry a message to a Mr. Green, who resided some distance on the far side of the highway. When their car was stopped, Merritt got out on the right side, walked around the front of the car, and started across the road on his errand. When he got out in the roadway, the truck, approaching from the rear of the parked car, struck Merritt, who died the following morning from the injuries received in the accident. The jury found that at the time of the accident the driver was operating the truck in excess of 25 miles per hour, and “in excess of that which is reasonably safe and prudent,” without headlights, without sounding the'horn, and without keeping a proper lookout. And the jury found that the driver of the truck was negligent in [417] each such particular, and that each such act or omission was a proximate cause of the accident. The jury further found that the decedent, also, was guilty of negligence proximately causing his death, in that (1) he failed to keep a proper lookout, and (2) failed to keep such a lookout as a person of ordinary prudence would have kept. But the jury further found, on the contrary, as stated in appellant’s brief, that: "(a) He (decedent) did not fail to look to the left before attempting to cross the highway; “(b) He did not fail to observe to the right and the left to ascertain whether he had time to cross the highway; “(c) He did not fail to stop before attempting to cross the highway; “(d) He did not fail to look before attempting'to cross the highway; “(e) He did not fail to listen before attempting to cross the highway; “(f) He did not attempt to cross the highway when the front end of the truck was already past his position; “(g) He did not run into the side of the truck when it was passing.” And, after thus finding that the decedent’s death was proximately caused by the negligence of each of the parties, the jury found that his death was the result of an unavoidable accident, as defined in the court’s charge. Upon consideration of all these findings, the trial judge rendered judgment for the defendant, Refining Company. The Mer-ritts have appealed. Plaintiffs predicate the appeal upon five propositions of law. In their first proposition plaintiffs urge that the trial judge erred in submitting the issue of unavoidable accident and in rendering judgment for defendant upon that theory, it being contended by plaintiff that there was no evidence to raise that issue. We overrule the proposition. We find the evidence supported the issue, and conclude that, but for other matters, the finding thereon would have required a judgment for defendant. In their second proposition plaintiffs contend that the finding of unavoidable accident was in direct and irreconcilable conflict with other findings to the effect that the accident was proximately caused by the negligence of each of the parties. We must sustain the proposition. The jury found each of the parties guilty of negligence in several particulars, and that the negligence of each and both parties proximately caused the accident. It is elemental that, when an injury results from the failure of either party to exercise ordinary care to avoid such injury — that it was occasioned by the negligence of either party — it cannot be attributable to unavoidable accident. Unavoidable accident can occur only in the absence of negligence. Rosenthal Dry Goods Co. v. Hillebrandt (Tex.Com.App.) 7 S.W.(2d) 521; Dallas Ry. & Terminal Co. v. Darden (Tex.Com.App.) 38 S.W.(2d) 777, 779. This being the case, the jury finding of unavoidable accident, and their several findings of negligence upon the part of the respective parties to the accident, were in irreconcilable conflict and afford no support to the judgment. Texas Interurban Ry. Co. v. Hughes (Tex.Com.App.) 53 S.W.(2d) 448. As stated, the jury found, generally, that the decedent negligently failed to keep a proper lookout, and that such negligence was a proximate cause of the accident. On the other hand, however, the Jury further found, in effect, that before attempting to cross the highway decedent stopped, looked, listened, “observed to the right and to the left to ascertain whether he had time to cross the highway.” Plaintiffs contend, in their fourth proposition, that the general finding that the decedent failed to keep a proper lookout is in direct and irreconcilable conflict with the specific findings that before attempting to cross the road decedent stopped, looked up and down the highway, both to the right and left, and listened “to ascertain if he had time to cross the highway.” Obviously, when a person, before attempting to go into a situation of potential danger, stops, listens, and looks in every direction whence such danger might come, he has performed every possible duty imposed upon him in such situation, except the duty of avoiding any danger disclosed by stích caution. If he has taken all those precautions exacted of him by the duty to keep a proper lookout, then a general finding that he negligently failed to keep such lookout will not be given effect. The general and specific findings are indeed in irreconcilable conflict. They are inexplicable. They are irrational. Construed together, as they must be here, they mean nothing, and both should be disregarded. We sustain plaintiffs’ [418] fourth proposition. Yarbrough v. Dallas, etc., Co. (Tex.Com.App.) 97 S.W.(2d) 169; Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 27 L.R.A.(N.S.) 237; Hines v. Foreman (Tex.Com.App.) 243 S.W. 479; Sproles v. Rosen, 126 Tex. 51, 84 S.W. (2d) 1001. The error of the trial court in rendering judgment upon conflicting findings, when it is not otherwise supported, requires reversal, but does not warrant rendition for plaintiffs. Hines v. Foreman (Tex.Com.App.) 243 S.W. 479. The matters presented in plaintiffs’ third and fifth propositions are not material to the decision, and, as they will probably not arise in a future trial, we forego discussion and decision of them. The judgment is reversed and the cause remanded.