*1 fi appeal success,
their with the costs are rights the gas thereunder were owned equally. divided Tower Company.” Production issues, Most of the trial related to other Rehearing.
On Motion for plaintiffs but when proved enough, that had was and required is all them. of rehearing Defendants’ motion for The motion for is overruled. rehearing grounded upon plaintiffs theory did not invoke the of ratification opinion plaintiffs, by In our
revivor. brief, proof
pleading, have done
enough they By pleading, to invoke it. par subsequent that the conduct para
ties ambiguity gave meaning opin leases, graph 2 in our quoted COMPANY, Appellant, DALLAS TRANSIT ion, respect with gas. to the sale of pleading specific words also asserted the al., Appellees. E. D. YOUNG et April 26, lease, wherein the recognized validity defendants No. 16190. They 1958 lease. alleged Court of Civil of Texas. recognition, lease was a defendants Dallas. royalty, made demands for shut-in and that plaintiffs paid royalty, clearly “thus June they recognized said lease evidencing Rehearing July 26,1963. Denied in full force and effect.” being recognition
At the trial the oil lease from
Hastings Mabry and wife to Holcombe and introduced, Hastings while himself was him, “now,
on the stand. asked Plaintiffs here,
on date of this oil lease Mr.
Hastings, you position taking were still Company
that Tower Production or the
assignees still owned the rights leasehold gas property,
insofar on is that answered, To this he
correct?” sure “I
did, belonged anybody didn’t think I time, give
else at that he hadn’t recognition
nothing.” The 1960 lease was objection.
admitted without points brief
Plaintiffs’ to the statement facts and the exhibit 1960 lease argument, “in fact makes the evi- clearly established that
dence such indi- such leases
viduals considered insofar as rights thereunder were concerned gas force effect as
were late as full they
April when entered into an Lease to and with G. Holcombe
Oil C. property
the same wherein it was recited *2 ’ Dallas, Hauer, appellant. for L.
John Johnson, Yarborough, Yarborough & Dallas, Ford, appellees. Allison & BATEMAN, most light, supports favorable find Justice. ings, and we must disregard all evidence damage collision, This suit stems from a which would contrary lead to a result.” collisions, or series of between motor four *3 Biggers System, v. Bus Continental 157Tex. vehicles, all headed in a northerly direc- 351, 303 359, 363; Lynch S.W.2d v. Rick tion on Second City Avenue in the etts, Tex.Civ.App., 306 S.W.2d Dallas. The first car the line was a reformed and affirmed 158 Ford sedan occupied by appellee owned and S.W.2d 273. wife, Ford stopped and his which was Jesse awaiting opportunity to make a left
turn. The second vehicle was a Chevrolet testified that he did not know operated appel- Young’s panel truck whether by completely owned and truck had stopped lee Young, up it, E. D. which had moved be- before the bus struck he could stopped hind the stopped Ford and or have instantly, was either going there was very slowly. nothing The next line between him and appellant’s prevent truck city operated to by one Holt. him seeing its movements, The fourth know, vehicle was a Chevrolet that he did not or recall, by truck owned could not Rodgers. and driven whether Young “had his hand out from the time he first saw Ford and Young sued Dallas Transit stop until there was a collision.” His Company, Rodgers, claiming Holt and dam- testimony further indicated that the truck ages bodily for injuries. jury found was about 200 feet ahead him when he driver, Holt, failed it, first observed that he knew that both proper lookout, proximate which was a his bus and Young truck would have and, fact, proximate the sole cause of stop because of the stopped Ford, and party No other found collision. Young only truck was about ten guilty negligence proximately causing feet ahead of him when Rodgers vehi Appellant and Holt moved collision. cle struck the rear of the There is no bus. veredicto, judgment non obstante which evidence that he Young observed the truck overruled, motion was and court ren- any at time in the Young testi interim. dered judgment on the verdict in favor fied brought that he his complete truck to a Young against and Ford stop behind the Ford and his extended Holt. arm outside his vehicle to indicate Appellant appealed pre- alone has stopping, stop on, light that his point error; viz., sents one and that stopped position he was in a three the trial court in overruling erred its mo- four seconds before his vehicle was judgment tion for non obstante veredicto struck. (a) sup- no because there was evidence to While may this evidence something port improper lack findings, lookout directness, clearness yet we must appellees (b) filed admissions that evidence, hold that it is some more than a Rodgers’ truck hit the bus from behind scintilla, sufficient carry the issues to before bus hit We jury findings there see no merit in this and affirm the on. The lookout maintained or neglected judgment.
by a motorist very often difficult to Appellant’s prove burden here is to dem by evidence, yet many turn, there was no onstrate evidence hav cases does, as this one single upon ing probative force which the Improper issue. like other question; findings made the negligent omission, act or may proved could determining whether burden has circumstantial Lynch evidence. v. Rick discharged “may etts, consider only been which, evidence, any, if viewed in its And it was held the Fort Worth Court by some extenuat- is excused conduct itself collision of Civil that “[t]he or condition.” circumstance part ing negligence is some evidence of car preceding who strikes a of the driver Countess, Tex. explain or Appellant attempts rear.” Renshaw v. hist. no wr.
Civ.App., excuse bus with the the collision of its Behrendt, Caraway by saying Tex.Civ. See hist., and App., stopped suddenly signal no wr. failed 363, no wr. Wagoner, stop, Miller intention to or that the brakes on suddenly hist. became without ineffective *4 warning part appellant or fault on the of hand, appellant On relies heav- the other that employee, ground or its but sole ily Co., on Rankin 129 Tex. Nash-Texas v. Rodgers rear bus negligently hit the of the 396, 199, 195, it was 105 in which S.W.2d pushed of and knocked into the or it rear accident, held that: “The occurrence of an apparently truck. This the was collision, of or is itself not of evidence lean; appellant which reed on could negligence.” principle firmly This rooted and it out to a weak Un be one. turned “But, widely recognized. and the while less could establish that bus its happened naked fact that an has accident pushed involuntarily was into the vehicle may negligence, yet be no evidence the of it, ahead of the conduct its stood of character the circum- accident the testimony rather defenseless. His proof stances in attending may be quite the vio definite that bus struck that, to reasonably lead the to belief lently from the to enough rear —violent without negligence, it occur- would not have wheel, knock him steering loose the Washington Missouri, Ry. red.” K T& v. balance, him to his his cause lose Co., 314, 38 S.W. 765. cap to fall off his foot come off pedal brake this force shoved —and Solt, As Hoey Tex.Civ.App., said in v. into the He 236 gain- S.W.2d 246: can “It not be this, extent, corroborated some two said that stop one who fails to his automo- passengers bus. There was testi response bile in signal, pro- to a traffic but mony which, contrary, weak, although pels the into same the rear end of an auto- was more than a scintilla. Ir mobile which has stopped in obedience to Joske vine, 91 (See 44 signal, guilty negligence proxi- 1 mately causing injury damage unless Footnote) right had a to be- Rodgers shortly 1. Luther testified that be that he does not know whether fore he struck the rear he vehicle in bus ran into a front it before fairly deposition Rodgers heard a loud crash which In sounded he hit the bus. his accident; like an automobile he said that was about feet he 60 per traveling hour, looked ahead of him on each 15 or miles side to see bus accident, applied if he see could but did when he first his brakes and' one; say bus; see that he did not 60 feet into the he heard skidded about approaching although the crash in front of the bus he was when bus he appeared him; be and that’s front heard crash when he slowed down; he couldn’t tell noise whether sounded was on the like it was straight ahead, side or in the immediate area. but out in front place; wife, Rodgers, of him some I-lis Mrs. Katie testified riding 200 feet behind the bus when she was with her he heard husband and it, traveling they approached per hour, about 45 miles that as the scene she “bang” at which time he took which his off heard a sounded foot like “two accelerator; running together” light people that he saw the brake sounded her; on the bus “flicker” when he in front of was about like it was that after pick-up 60 to 90 feet behind the bus and struck the she then their bus did not brakes, applied for the first time his own forward and to the see it move best of speed reducing not; knowledge his to about it did 25 to 35 her that after per bus; miles hour when he hit struck the bus she did not' hear- testimony stop reject lieve hind it would unable to passengers. might and the two push him into the undisputed
cars front. The evidence is there right was sufficient room the exactly hap what Obviously, that is bus, which he could have thus turned the pened, jury’s answer to evidenced avoiding the collision. Special Issue No. as follows: It has ordinarily been held that preponderance a motor- you “Do find from a ist ap- need not a lookout for vehicles of the that on occasion evidence proaching rear, defendant, from his cir- think Clifford presented such as are into cumstances here at Rodgers, driving his vehicle least proximately caused warrant the issue submission of the of the n jury. Downey, it ? As said in it to the car in front of collide with Jones Tex.Civ.App., err. NO,” “ANSWER: ref. n. e.: r. “However where a motorist is *5 traveling upon paved highway and is transcript The ap- does not that reflect preparing change di- stop, slow down or pellant objected to the submission of that rections, required he is a lookout issue, disregard or moved the the court to rear, proper for traffic give to his finding; complaint no the submission signals of his intentions.” Art. See also finding of the issue made was 6701d, V.A.T.S.; 68(c), (K), Art. 801 trial, § in the amended motion for new Code; Smith, Sage Texas Penal Le Tex. point no of error made in this court 315; Civ.App., 145 S.W.2d Scott v. Therefore, respect with thereto. it seems McElroy, Tex.Civ.App., jury unchallenged us finding, this e.; Talbott, Langham err. ref. n. r. any manner, binding in on Civ.App., n. err. ref. r. e. only basis could have for obliterates the only explanation the for the colli- offers Therefore, findings hold that in Young sion between the bus support were not without some the evidence. Appellant’s contention yet basis for our that Ford and
There is another jury findings on look admissions filed conclusion pick-up Rodgers’ truck have in the hit the bus from out evidence. approached Young’s behind before the bus that as he hit truck also testified pled will now be noticed. he would occasional Ford of the accident scene car, stopped his Young stopped mirror the rear-view to see behind ly “glance in him, him, and that the bus anything behind” but struck truck there if was so with such force as to knock he did not do after it forward into this occasion that on car; and, alternative, Ford’s in the in front of him. the cars he saw apply bus driver failed to considered that as his brakes may well have allowed the bus crash place where the two ve into the rear approached truck, already stopped added, He etc. then ahead of it were hicles “that, any have the same sentence: knew he would also event immediately bus, ordinary would there care said stop, exercise behind at very question, time to the time and on the occasion in required him at look by see if truck mirror to another Chevrolet driven the- his rear-view said closely Rodgers, Luther who was following so might proceeding be- vehicle noise, something on in front of based this the bus bit the bus strike tlie then it; vehicle in front of it noise she heard before before she and her bus, colliding although piek-up husband bus was like hit the she could- struck say, make; n’t see around in front of the bus. that she would would vehicles Northwesterly disputed in a said Sec- treated the matter by direction on as a issue * * * (cid:127) and, introducing ond point Avenue evidence thereon. The Rodgers, at time the about the same thereby waived. 31 Evidence § C.J.S. 381c, crashed into the rear of the Chevrolet p. 1172;’ Pleading’§ p. 7 C.J.S. Young, 335; truck at by driven Elisha David Williford, Restelle v. question, the time and on the occasion in err. ref. n. r. e. bus, giving
crashed into the rear of said impetus added in- to said it crashed bus and 3) It in mo mentioned Elisha to the rear of said truck driven judgment tion for non obstante veredictor David Young, etc.” appeal and since of error on motion, relates to the overruling of that Young’s petition, In alleging after properly contention cannot be consid the bus crashed into the back of ered here for the first time. alleged: it was “that almost instan- thereto, taneously prior the back of said 4) Haying -no bearing Company Dallas had been Transit proper issues, lookout the matter of which struck a vehicle owned vehicle struck which vehicle first is at most operated by defendant Luther Clifford determina-; evidentiary any and not in sense Rodgers.” appeal. tive above, of the As indicated case turns on whether there evi- This contention is overruled for four support jury dence to findings reasons: not on a determination of the order *6 which the vehicles collided with each other. 1) question pleadings The do inquiry Our is limited i not, opinion, judicial our constitute the Does record contain evidence to by appellant. admissions claimed for them support finding improper lookout? alternative, pleading Ford’s was in the Having does, demonstrated that it plea the alternative cannot be used as a judgment is affirmed. judicial opposed admission to his first or plea. main Climatic Air. Distributors of Affirmed. Sales, South Texas v. Climatic Air 162 702; Tex. Rule Ver- ON MOTION FOR REHEARING
non’s Texas Rules of Civil Procedure. Furthermore, actually not In its allege does motion for rehearing appellant di- that the hit the bus rects first and caused our attention to the fact that we did merely express it to strike our views on its contention that impetus.” gave appellees “added are bound pleading, quoted above, likewise falls far evidence on short of which was that of its Holt, admitting Rodgers’ truck hit who testified the truck manner first in such struck the bus knocking away to cause the colli- knocking sion between the bus controls and truck. bus into the Williford, Appellant in Restelle says testimony As Tex.Civ. 444, 445, binding appellees App., 364 S.W.2d is so require err. ref. n. r. e.: us allegations that the doubt to reverse render the judgment, “We were made even clarity they, though a strictly with such defendant con- and inter- strued, may be considered a ested witness. It relies on admis- Cochran v. Central Storage Co., Wool Growers sion.” Tex. wherein it Appellant 2) did not contend that “where testimony is held of an in- trial court these pleadings were terested witness is not by any contradicted witness, necessity admissions as to obviate other or attendant circumstances, point. contrary, of evidence on the clear, On the and the same is positive, direct and contradiction, inaccuracies, free from suspicion circumstances cast tending to thereon, true, it is taken as a as matter
law.”
In view of the Holt’s corroboration of
testimony by passen- that of the two
gers, appellant says this case
governed by & Simonds Stanolind Oil Co., 134
Gas evi again reviewed
We opinion original and adhere to our
dence proper of failure to finding evi least some
lookout is not without at are correct If we
dence to it.
that, “disregard evi duty to all is our contrary re lead which would
dence System, Bus Biggers
sult.” v. Continental would 359. This testimony of Holt
of course include rehearing passengers. motion
is overruled. *7 INSURANCE EMPLOYERS’
TEXAS ASSOCIATION, Appellant, MILLER, Appellee.
Merritt
No. 7451. of Texas.
Court Civil
Texarkana. 11, 1963.
June July 23,1963.
Rehearing Denied Kenley, Boyland, Boy- Ritter &
Herbert appellant. land, Longview, for