This is а suit for personal injuries resulting from an automobile collision. Plaintiff below, Ruth Lucas (et vir, M. L. Lucas), sued Robert Clifton Burrows, defendant below, alleging various acts of negligence.
Trial was to a jury which failed to find that defendant was driving at a greater rate of speed than a person using ordinary care would have driven, was keeping an improper lookout, or failed to make рroper application of his brakes. The jury answered “none” to the damage issue (Special Issue No. 15) inquiring of physicаl pain, mental anguish and loss of earnings, past and future. A take nothing judgment was entered by the trial court from which plaintiffs bring this appeal.
Plaintiffs’ first six points of error contend that these findings are against the great weight and preponderance of the evidеnce and that the evidence, as a matter of law, shows that defendant was driving at excessive speed, was keeping аn improper lookout, and failed to properly apply his brakes.
[ 1,2] On the great weight and preponderance рoints, we consider the entire record. A fact issue becomes established as a matter of law only when the evidence is undisputed and reasonable minds can arrive at but one conclusion. See cases cited in 40 Tex.Jur.2d Negligence § 160 at 700-701 (1962).
We hеrewith summarize the evidence. Mrs. Lucas testified that she was driving from Huntington to Lufkin on a four lane highway, driving in the outside lane. Near where Highwаy 69 intersects Parker Drive, she moved left to the inside lane, turned her signal light on, and came to a complete stop intending to turn left on to Parker, when she was struck from the rear by defendant. Defendant was driving in the same direction and when plaintiff first saw him, he was going around a truck which was also in the left lane. From her rearview mirror, she judged defendant’s speed to be “over seventy.” (The аccident occurred in a 70 m. p. h. speed zone.) Her testimony and that of her physician is not here summarized for reasons lаter set forth in this opinion.
Defendant Burrows, age 18, testified that he “come up behind, it was a big bob-tailed truck and Mrs. Lucas had — she had passed. She had gotten well, it has been several seconds. Well, I moved over and there was another car behind me and it pulled up in my position. Well, then I seen her stop lights come on and she give a signal and I didn’t have any place to go and I applied my brakes as hard as I could but I didn’t have room to stop.” Defendant was in the outside lane following the truck before moving tо the inside lane. His speed, according to his testimony, was “[a]bout fifty miles an hour.” When he moved to the inside lane with the intention of рassing the truck, he saw Mrs. Lucas’ vehicle but no signal. When he saw her brake and turn lights come on, he applied his brakes “as hard as I сould” but the collision occurred.
These were the only two witnesses who testified as to how the accident occurred. The testimony of each as it relates to speed, lookout and brakes was sharply different. It was the jury’s prerogative to mаke its choice. Their findings are supported by the evidence. Points one through six are overruled.
Plaintiffs’ seventh point of error is:
“The trial court erred in not grаnting a new trial because the answer of the jury to Special Issue No. 15 is so against the great weight and preponderance of the evidence, and is so manifestly unjust and unfair under the evidence in this case, so as to show, as a matter of law, that thе jury was motivated and acted upon bias or prejudice or the injection of new or unauthorized matters or evidencе during jury deliberations.”
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The failure of the jury in this case to find defendant guilty of any act of negligence makes its finding of “none” to the damage issue (Special Issue No. IS) immaterial. Grady v. Dallas Railway & Terminal Company,
Plaintiffs’ eighth and last point of error is:
“The trial court erred in failing to permit Plaintiffs to introduce in evidence the testimony of Judge H. N. Russell concerning the paying of the fine of a traffic violation by Defendant in this cause.”
By bill of excеption, Justice of the Peace H. N. Russell identified Volume 11, page 209 of his Justice Criminal Docket. It showed a complaint filed аgainst the defendant alleging he “[fjailed to control speed.” This sheet showed “ ‘Fine’, $21.00, . Paid.” The justice of the peace wаs asked and replied as follows:
“Do you or do you not accept a fine from anyone unless they plead guilty ?”
“Well, it would not be customary . . . . Whenever a person comes into my office I ask them — in other words, they give me their name and I pull the cоmplaint and I ask them how they want to plead on it. If they say ‘Guilty’ well, I assess the fine. If they say ‘Not Guilty’ well I tell them they have to post a bond.”
It was stipulated that defendant had paid the fine in person. The defendant testified that he had pleaded not guilty. After recеiving a letter in the mail, “I went down there — I just went down there and paid it.”
A plea of guilty and conviction based thereon is admissible under сircumstances where the same act is involved in both criminal and civil proceedings. Mooneyhan v. Benedict,
Plaintiffs cite the case of Carrick v. Hedrick,
The theory under which a plea of guilty is admissible is an admission against interest. Atkinson v. Rister,
In the case before us, while it is undisputed that defendant paid the fine personally, there is no docket entry of any plea whatsoever and the justice of the peace did not recall the incident at all. The defendant testified that he pleaded not guilty. Under these circumstances, we hold that a plea of guilty was not shown and we overrule this point of error.
The judgment of the trial court is affirmed.