*1 LINES, FAST MOTOR MERCHANT’S INC., Appellant, al., Appellees. LANE et

J. R.

United States Court of Appeals Fifth Circuit

Sept.16, 21, 1958.

Rehearing Denied Nov. *2 Rawlings, Sayers, Scurlock, going east, Both Nelson vehicles were on Wal truck, Worth, Tex., Eidson, for Seurloek & appellant. Fort nut. The Pontiac was behind the light stopped Both a red inter at at the streets, section of Walnut Colorado Smith, Foy, An- Earl San Joe W. H. The next San intersection is Walnut and Woodward, Coleman, gelo, Tex., H. O. leaving Colorado, Saba. Manus, Mc- Just after Foy, Hardeman, Tex., San An- & Smith the truck the Pontiac saw gelo, Tex., appellees. for in his rear view mirror- He saw the RIVES, JONES, and WIS- Before car feet when he was 125 Judges DOM Circuit from San Saba. After the truck WISDOM, Judge. Circuit gone block, ear had about a third of the swung Ward ing col- out into the lane intend This case an automobile left concerns making pass vehicle, pressed the truck. He down lision a lead between vehicle, gas overtaking pedal. and an The two contin left vehicles alongside. Appellant’s argument appeal they ued main is neared the in tersection, pointed front district the Pontiac reached issues the jury. point, end of the any trailer. At this court submitted warning signal, the truck turned injured Peggy Lane was in a collision in front of the Pontiac. That is the passenger between her father’s Pontiac story. says Lanes’ McManus he did car a tractor and semi-trailer and that automobile side si«nal (43 McManus, long) driven swiped his Ward truck. veered to employee of Merchant’s Fast Motor car, left. The truck struck the car. Peggy’s young Lane, Lines. Ward control, intersection, out °f crossed the driving brother, Pontiac at the was jumped curb, Peggy ahit house. Lane, time R. as next of the accident. J. windshield, through was thrown daughter, Peggy, friend of his minor injuries. her He sued also for sued for conflicting evidence damages past and fu- his car and for kept proper to whether the truck driver Peggy. expenses for On ture medical signalled lookout and whether he for a issues, driv- found both disagreement turn. There is as to damages negligent. for ers assessed point of collision. Was in or near $30,000. Peggy the amount disagree There intersection ? damages for his Lane no allowed ment, course, as to the car whether expenses, or for medical automobile sideswiped truck, or the struck struck ground on a mission that Ward was right, the car’s rear fender. We shall not accident, father at time re-try facts; jury. that is for the appealed. Merchant record, On the we cannot find error findings. jury’s p occurred at or near the The collision jj n ,T and San Saba intersection Walnut - 1 i T Issue No. m the court m Texas Coleman, the town streets m ,., reads as follows: past quarter four m the after- at about April Lane 1956. The chil- noon of you “Lo preponder- find from a family frequently used the automo- dren anee evidence that at the time go Ward, school. bile question, °f the collision in Louis years old, had the usual then fourteen McManus, L. the driver of defend- sixteen, Peggy, license. then driver’s semi-trailer, ant’s truck tractor permit” and was not al- had “learner’s guilty drive herself. At the time lowed to following respects: bringing Peg- Ward accident “ Richard, brother, gy younger home prior and a said [a] That McManus Peggy question in the front from school. seat to the collision failed Ward. as that term driving along Co., Cir., & timore defined, Ohio Walnut Railroad question Coleman, City Tex- 379. “If the Street law, may mixed as, fact ba submitted is instruct That said “[b] ed as to the *3 standards which course his vehicle from a direct Cir., apply.” King, are f° Jackson v. upon road- a moved his vehicle 1955, 714, way move- a time- when safety, predecessor Ar- with of Section be made 801(K), tide 6701d Vernon’s was Article reading, Code, part, Annotated Penal in said McManus That “[c] as follows: signal- a first lefthand turn without person charge any “The in vehi ling ?so his intention to do highway cle before uP°n Public or ‘No’.” “Answer: ‘Yes’ turning, changing stopping . ’ ° * u , , Ap- paragraph Appellant objects b. . . . ... , , , , ,. „ .. . . course such vehicle shall see first ,, , ,, interrogatory argues does ~ . . lant that , , , space that . there is sufficient ... , „ , ,, , inquire act : as to what ,. , „ safety m . . . such # * * to be made . negligent; „ driver was omission of the sug- jury, since misleads the Inc., Express, Henderson, Brown Tex. gests the acci- the mere fact (error Civ.App.1940, 142 S.W.2d jury to think occurred leads dent Leach, Judg. cor.) dism. and Fisher v. part there (er Tex.Civ.App.1949, 221 S.W.2d 384 n ofthe truck driver. , ,. , , , ref., N.R.E.) approved special . .. ror . . issues ’ ' , , virtually interrogatory . . , language tracks .. . ° , ,. „ . m of Article couched language 68(a) of Article of Section ^ '' n 6701d, n Statutes. Civil Texas Annotated Vernon’s In Bryant Hall, Cir., 1956, F. reads, part, fol- in as This approved a n jows. this Court charge Georgia quoting a statute * * “No nersofi shall turn _ statute, jury T xx. Texas , similar , j. a course or a vehicle from direct -d , Bryant dump truck was In that case right roadway upon a- move or eft Mrg_ cal, HalFs Hall ahead Mrs. , , , , ,, , , began movement can until such unless and ^ Bryant «„ « near the truck drew she ..T x , left traffic lane be made turning into with the passing truck. did intention She nothing im In itself road know that there was a entrance n°i< charging lan proper a in the ahead. statute, .guage of the is when one warning, directly turned left into the n sues is whether the statute in the case assignments of the car. One of the Path Wheeler, In Swann v. was breached. appeal was of error con court Tex.Com.App.1935, 126 Tex. 86 S.W quoting its fused appears “It said: .2d the Court Georgia statute: fke negligence is rule when be person upon comply shall predicated “No turn a vehicle at failure to statutory conduct, intersection unless the vehicle is rule of with some statute, roadway position upon proper (cid:127)upon penal of some violation a 68-1644, section or not the statute as the issue whether private complied a vehicle to enter a or violated should has been driveway or otherwise turn road the stat he submitted course, a vehicle from direct course or usual rules Of the- -ute itself.” right roadway or left “The circumvented. move be law cannot interrogatories put ques and until such movement can must unless legal proposi made with reasonable fact from which tions ”*** may Carpenter Bal- deduced.” fion jury: may of a lead vehicle fail to The trial court instructed signal a left fail to place law is to effect of this “The related to But unless these are omissions de- duty upon lead vehicle to the time he is and a vehicle high- from the termine that overtaking him, ts that par said it cannot be driveway way private road or into to a are acts safety reasonable can be made Giving following ticular vehicle. attempting make such before whole, No. struction, as a a down earth con turn.” we cannot believe upheld instruction.1 Court wag Paragraph misled. asks the *4 distinguish attempts the Appellant to jury finding essential to make a on the ground the Bryant that there on the case turning and element of time of jury ef jn the judge trial directed the signalling. relation with lookout and place a . quoted was to of statute the .g the What is that tant jury be instructed on standards the T, / turn could L t°/etriTAppel be made. whether the isgues determining of ^ fact. ^ argues specific element since the lant v. King, Cir., 223 Jackson paragraph b lookout is absent of In Mut. Feldmann Connecticut Bryant deci Special No. the of Cir., 1944, Ins. Co. argue mapp is ica is e. sion charge Court invalidated the because, specifically look- paragraph to a refers .y. explanation concept , „ no , . made or what ? , to em- specifically paragraph to a c and out ,, required jury or standard the ,, the therefore, paragraph warnmg signal; ® ,, attempting ques ploy m . to answer ^ n , , , something else, and has . . to must refer X1 , believe ,, , ,, Here, judge gave ,. . . ~ . the able trial making jury the of the effect carefu, “negligence”, deñnitions negligent „ because lookou derancej.t. was an accident. «T -it xt i In evidence .2 the Issue No. jury court asked the to examine the cir argument might more existing the the mo cumstances time paragraph persuasive, b stood it- torist must make his decision to turn. read, however, in- anas self. It must be jury must decide whether then along tegral part oth- Issue 1 two prudent person would have turned his integral paragraphs parts, a and c. er vehicle at that time. (we and, jury it, as the read it we read think), neg- charge attempts us there are three elements of seems to that the ligence jury left into to to a lead vehicle make the the duties overtaking (1) conditional; imposed by path vehicle: of an the statutes are the a); charge (paragraph designed proper prevent the the lack warning signal concluding (par- jury imposed (2) lack of that the duties necessary agraph c); link the statute are or that absolute two, (3) time when failure them observe tween charge jury b). (paragraph instructs the The driver is made “* * * Georgia “‘Preponderance Moreover, 2. of the evidence’ means degree greater weight Code, 68-1647, it was also credible Section case, duty to determine that evidence lead vehicle “ ‘Negligence’ highway made could be failure turn from to exercise care, ordinary ordinary The standard of care means with reasonable person imposed upon ordinary pru- driver such care thus care charged being with that would exercise under dence like similar By ex could have discovered circumstances. which he term ordinary care, ‘proper charge it was lookout’ as used in this ercise type decide whether knew he meant character of look- known, ordinarily prudent person have should should realized out which appellee’s danger kept realised have would have under the same or simi- situation sufficient time to avoid lar ous circumstances.” collision.” , be r. e III. ref., avoid lead vehicle must have invs of the Texas the statute the ad Co. of Texas v. 291 S.W.2d instructions are m line with ,. IIlAb Civ.App.1957, . . Ci We , used: accident would i n. r. OX l/IiC .). a conclusion hold n. ,. , e.). Missouri , 308 S.W.2d v. A X l 931; vjJa.do Williams 306 S.W.2d prudent u . UI LU courts 56 Booker .. .... McFernn, xt. Tr Kansas-Texas have l/b been r driver that Olldv pp 185 ... Price, occurred, driver of was not m negligent recent Baker, „„ Xtl in (writ x x test o Tex.19 annlving w, Tex L* . , M i (writ . hold xmust r> .-i Ra Tex. ref., mv„ erroneous. ,, ^|ie ant’s driver was treating ma;jonty Manus, simply dem°nstrated ^ RIVES, . direction permitted respectfully ístraM that J movement could not be ’ because % defendant s Issue Number 1 °Pimon Circuit could . instruction as . .. ttaffact .. A. . he made a ... was, dissent. easily Judge guilty tact, , (cid:127) ,. made with .. T I think, , ,. 1.i e the i , be (dissenting). ’ . . quoted e., find that y* The form equivalent misled negligence. , misleading , t . . negligent . . defend , them . « move ... j_ into .. ti vr Mc- ... -c . to ... Ward that Ward’s appellant’s . Lane We hold that were contention negligence m a joint that should x is no venture Peggy and merit im- so Preserve the Defendant’s specifically I GQJip trial court his client’s ca able counsel did ling the error m to rights by the attention the his best *5 clearly Special and Peggy. puted to Pro- Rule Federal.Rules of Civil special cedure, U.S.C.A., permits “a court district We the hold tha-t in the form written verdict jury properly the to submitted igsue finding upon In this each of fact.-> e jury ta permitting to No. 6 the Issue “yes” jury an issue case answered to ^ pain and suf- future into consideration alternative; you “Do in submitted damages. fering fixing Peggy in * * * neg- guilty of find McManus judgment ligence following respects: any of the in * * (a) a Affirmed. failure to clearly excepts 1. “The that the defendant to Issue accident shows safety, and the Number 1 contained Court’s could not be made with question what, charge, question jury in ask that it contains the does not negli- anything, issue as to McManus that was whether or the truck driv did negligent gent to er was when he ve when he moved vehicle turned his his roadway making a a in hide from direct course and moved his left side of upon roadway Saba into San vehicle at a time turn Walnut Street turning Street, when such since McManus was movement could not and intersection, point general - he at at a where an too places big upon right and a burden had a to was too the de jury anticipate permits speculate au- fendant and that driver of the to to they and at- violate the law. act or conduct tomobile would tempt which intersection, might being pass negligence him in the consider as part turning getting over north side of in McManus vehi when his jury Street, permitting it is ele. Walnut they reason, example, say crossing some which “For am that for if I an in- green minds, light, imagine own was tersection in their that he and have merely coming negligent, another section, because there was automobile to the inter- suggests jury supposed stop accident, and it to the that at the negligent light, suddenly red have been into the my bursts inter- could section cause the turn not be made collides automobile though entirely safety, he in- where I am even was circumstances entire- ly any negligence prior negligence, then, innocent in nocent event, is, effect, submitting time, in and it it must be said crossing question, in one ask- intersection at a to the time when case McManus, guilty he, ing such movement could not be made with having safety, so, case, the accident.” with Me- Manus, the mere fact that there was an * * * very (b) of Wil- *, attention the recent cases * * * * * * [Tex.Civ.App.], when 308 S.W. at a time liams v. Price safe- [Tex.Civ. made with Booker v. Baker not be movement could ty, * * * App.], (c) lefthand made a S.W.2d and conceded signalling “that, inten- those cases establish least where first gave jury’s verdict facts raise an issue excuse to do so.” (a), alternative, statutory violation, jury must also no of which indication (b) , (c), (or party find that found to be the defendant' other true. negligent left) re- (a) [“failed described The conduct * * * spect. deci- In view of these conduct keep proper lookout”] previous sions our ef- statements to the (c) lefthand [“made described neg- 68(a) violation of Sec. signalling”] was without first broad, ligence per probably se are too me that seems to (b), must include submission to the (a) meaning read with negligence, the element of a standard instruction, (c) remainder of the and the ‘ordinary, based conduct of the of itself in and which is to define conduct ” prudent man.’ say My negligence. brothers constitutes “Giving No. say They plaintiffs-appellees’ When counsel not. that: whole, frankly construe- earth a down to concede that as a themselves thus jury was tion, that the of the stat- we cannot believe misunderstood the effect holding Paragraph ute, justify asks misled. how can we spe- tracking on the essential make a issue turning.” explanation, I do statute, time of cific element without further *6 deference, agree. con- jury? With did not mislead the artful (b) me an seems struction My au- cite Texas decisions brothers might occur finespun one which thorizing of issues the submission legal mind, but a skillful Those statute itself. of the meaning as ordinary words independent helpful in the cases are not them, laymen understand would administering justice, system of federal original Indeed, filed on brief “is characteristic of which an essential which, undertook plaintiffs-appellees in civil common- half of manner negligence per describing justify (b) ]aw actions, as function distributes trial jury and, judge between 68(a) of Art. 6701d “Section has command—of influence—if not the by assigns Amendment, held Texas Courts of the deci- Civil been Seventh duty impose Appeals disputed questions of fact sions of motorists, Ridge Coopera- jury.” Byrd not to unless v. Blue 893, 525, 537, tive, 1958, can S.Ct. 78 356 U.S. gov- Bergeron City we 901, 953. Here are 2 L.Ed.2d Port Arthur, 769, 264 49(a), S.W.2d Tex.Civ. by Rules of Federal erned Rule (error N.R.E.), App.1954, ref. Procedure, by was a sound the recent Civil case in which the found this Court: rule of that construction plaintiff when such move- clearly “This inade- not made quate. Rule Federal Rules of held that such The court es- Procedure, permits Civil submission negligence per se.” tablished interrogatories juries only ques- issues of contention that fact. If violation is a mixed fact and statute constituted se was law, appellees’ supplemental be submitted if the elaborated May jury is instructed as to the filed brief apply.” which are to standards However, supplemental in a later brief King, Cir., May 5 appellees, 223 counsel Jackson 714, filed Scarborough also, candor, 718. See v. Atlan- commendable called to our Co., Cir., 1951, F. tic Coast Line R. 935; Mut. Feldmann v. Connecticut 628; Co., Cir., Life Ins. Co.,

Carpenter R.O. v. Baltimore &

Cir., 1940, 109 F.2d 375. general definition (see ma- footnote

the district court jorit'y mis- opinion) remove did not issue,

leading defect from the probably still believe would (b) constituted

the conduct described negligence per se Number Convinced that misleading deprive the was so trial, re-

defendant-appellant of a fair

spectfully dissent. FERRAIOLO, Appellant,

Nicholas NEWMAN, Appellee.

F. R. *7 Appeals Court of

United States Sixth Circuit.

Sept.