Harber v. Switzer

DENTON, Chief Justice. This is an appeal from the order of the trial court overruling the defendants’ plea of privilege to be sued in Hutchinson County, Texas, the county of their residence. John Switzer filed suit for personal injuries suffered as a result of an automobile-truck collision which occurred in Gray County, where this suit was filed. Plaintiff’s controverting affidavit sought to hold venue in Gray County under Section 9a of Article 1995, Vernon’s Ann.Civ.St. Various acts and omissions of defendants were alleged to constitute negligence and proximate cause of plaintiff’s injuries resulting from the collision. The defendants contend there is no evidence and insufficient evidence to support the implied findings of negligence and proximate cause. There being no findings of fact or conclusions of law, it is presumed the trial court found all fact issues raised by the evidence in favor of the judgment. In determining the sufficiency of the evidence to support the trial court’s judgment, it is our duty to examine the testimony in the light most favorable to appellee and to indulge every reasonable inference in support of the judgment. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Appell Petroleum Corporation v. G. W. Townsend Lease Service (Tex.Civ.App.), 375 S.W.2d 547. The collision occurred at the intersection of U. S. Highway 66 and State Highway 273 just west of the city limits of McLean, Gray County, Texas. It was stipulated the truck being driven by defendant Caskey was owned by defendant Harber; and that Caskey, Harbor’s employee, was in the course of his employment. Switzer, the plaintiff, was a passenger in an automobile driven by Robert McDonald, who was killed in the collision. The car was proceeding west on U. S. 66 while the truck was proceeding south on State 273. A stop sign faced traffic proceeding south on State 273; and a hanging traffic light was in the center of that intersection. The light flashed red for State 273 traffic and an amber light for U. S. 66 traffic. U. S. 66 was the through highway. The investigating highway patrolman and plaintiff were the only witnesses at the hearing below. The defendants offered no evidence. The patrolman testified Caskey told him at the scene he “pulled up to the stop sign and stopped and he let one car go by, one car traveling west; he was traveling south, and he pulled up and stopped and let a car go by, and then he pulled out in the intersection”. The patrolman further testified “I believe he (Caskey) said he didn’t see him”. It is undisputed there was nothing to obstruct Caskey’s vision for some 400-500 feet in the direction from which the McDonald automobile was approaching the intersection. To maintain venue when a defendant has filed a plea of privilege, all the plaintiff is required to do is to make out a prima facie case, and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence offered by the defendant, it is proper to overrule the plea of privilege. Austin Road Company v. Willman (Tex.Civ.App.), 303 S.W.2d 878; Plains Transport, Inc. v. Parker (Tex.Civ.App.), 359 S.W.2d 556. (Writ Dis.) In facing the stop sign upon his approach to U. S. 66, Caskey’s duty is determined by the provisions of Section 73(b) Article 6701d, Vernon’s Annotated Civil Statutes. This section of the statute not only required Caskey to stop, but it requires that he “shall proceed cautiously, yielding to vehicles not so obligated to stop which are within the intersection or are approaching so closely as to constitute an immediate [845] hazard, but may then proceed”. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 lays down the rule relative to care required of drivers, in the relative position of Caskey, as they approach intersections. The court there held: “Before entering and while crossing the heavily traveled, through street, it was Mrs. Ricketts’ duty not only to look but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including the speed and proximity of vehicles approaching from either direction.” In view of the evidence of the respective rights-of-way of the drivers; the unobstructed view of the defendant Caskey; and the latter’s statement to the investigating patrolman at the scene, we are of the opinion the evidence was sufficient to raise issues of fact as to one or more of the alleged acts of negligence of the defendants, including failure to keep a proper lookout; failure to yield the right-of-way; and failure to apply brakes in sufficient time to avoid the collision. There was ample evidence to sustain the trial court’s findings that Caskey was negligent and that such negligence was the proximate cause of plaintiff’s injuries resulting from the collision. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774. (SW.L. 1). Triangle Truck Line, Inc. v. Kelley (Tex.Civ.App.), 344 S.W.2d 520. The judgment of the trial court is affirmed.