33 S.W.2d 260 | Tex. App. | 1930
It is conceded that it is the clearly followed principle that where the answer by the jury to material special issues are inconsistent, in view of all the special findings, a judgment thereon has not legal support Waller v. Tiles,
Appellee insists that the judgment could be supported in its favor upon the ground alone that there was no finding by the jury of negligence on the part of appellee's driver in driving upon the lefthand side of the highway. The question of negligence vel non was not submitted to the jury, and there is no express finding of negligence by the jury in the respect mentioned. The fact, however, was found by the jury that the appellee's driver was driving at the time of the collision upon the lefthand side of the highway. Article 801 of the Penal Code expressly provides that: "On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead." In the absence of a statement of facts, in explanation of the situation, we cannot say that the fact found by the jury did not constitute prima facie negligence. The court might have attached that legal effect to the fact, and we cannot assume that it was not so done. There was no request by the appellee to have the issue of negligence vel non in the respect mentioned submitted to the jury.
*263The judgment is reversed, and the cause remanded for new trial.