508 S.W.2d 691 | Tex. App. | 1974
This is a wrongful death case under the Texas guest statute.
Stephen Brown, the son of appellants, was killed in a one-car collision, while riding as the guest of. Michael Powell, the son of appellee. Michael Powell was also killed in the accident. Appellants brought this wrongful death action against appellee Powell on a negligent entrustment theory. Trial was to a jury, but the trial court granted judgment non obstante veredicto for appellee.
On the night of the fatal accident, April 28, 1970, Michael Powell was driving a family car. His passengers were Stephen Brown and James Robison. There is no dispute that they were guests under the Texas guest statute, Vernon’s Tex.Rev.
In response to special issues, the jury found that Michael Powell was a reckless and incompetent driver and that his father should have known that fact. It found that he was speeding at the time of the accident, that he acted with heedless and reckless disregard for the rights of others (gross negligence), and that this was a proximate cause of the occurrence. We affirm the judgment non obstante veredic-to of the trial court on the basis that there was no evidence to support the finding of gross negligence.
Recovery by a guest passenger requires a showing that the host driver was guilty of gross negligence or that he intentionally caused the accident. Mc-Phearson v. Sullivan, 463 S.W.2d 174 (Tex.Sup.1971); Harbin v. Seale, 461 S. W.2d 591 (Tex.Sup.1970); Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571 (1945). Under the Texas cases, evidence of excessive speed can support a finding of gross negligence when taken together with other circumstances such as knowledge of mechanical defects, known traffic hazards such as sharp curves or railroad crossings, driving in a residential or heavily populated area, and poor visibility. McPhearson v. Sullivan, supra; Harbin v. Seale, supra; Fancher v. Caldwell, 159 Tex. 8, 314 S.W. 2d 820 (1958). This accident occurred at night. There was no showing that Michael Powell knew of the curve, and it was affirmatively shown that it was not hazardous. Since Robison was asleep and the other two boys died, there is no subjective evidence pointing to conscious disregard for the rights of others on the part of Michael Powell. Even the evidence of excessive speed is weak. Appellee contends that it amounts to no evidence, but we need not reach that question. We are of the opinion that assuming excessive speed was shown, under all the facts and circumstances, Michael Powell was not shown to be guilty of gross negligence. Appellants failed to make a prima facie case, and judgment non obstante veredicto was therefore correct.
Affirmed.
. Amended by Tex.Laws 1973, Cli. 28, Sec. 3, at 42, effective September 1,1973.