Phoenix Refining Co. v. Powell

Appellant’s On Motion DAVIS v. STATE. Appeal. Reinstate No. 25924. DAVIDSON, Commissioner. Appeals Court Texas. of Criminal Appellant filed, his mo has 25, 1952. June appeal, tion to at reinstate the affidavits Appeal Motion to Denied Reinstate give the fact that he did notice testing 15, 1952. Oct. thereby appeal court, in the trial and seeks recognize

to have this court that notice appeal properly given. This we cannot do. Whether did, fact, appeal such notice give the trial court- is a matter be determined in that court. appeal

The motion to reinstate overruled.

Opinion approved by the court. CO., PHOENIX Inc. v. REFINING al. et POWELL No. 12423. Appeals Court of Texas. Civil San Antonio. Sept. 10, 1952. Rehearing Denied Oct. appellant. attorney for No Blackburn, Atty.,

George State’s P.

Austin, the State.

BEAUCHAMP, Judge.

Appellant penalty was assessed a county jail years in the

four and $1000 complaint charging him with the

fine aon unlawfully whisky possessing

offense dry sale in a area. The purpose prior alleges

complaint further two convic like offense.

tions for a transcript contains no record of Consequently, appeal. this court

notice of appeal dis- jurisdiction and has

missed. render-

Upon jury findings, judgment was party recover ed that neither As appealed. only has other. Phoenix witness, the eye surviving there Russell, An- Trueheart, San McMillan & night of occurrences of events and tonio, appellant. for must reconstructed October Austin, Boyle, Avery, Wheel- McKay & It basis. upon a circumstantial evidence Davis, Davis, T. er, Richard & Gresham jury find- appellant’s that the contention Antonio, appellee. for San judgment ings for which the Powell supported are mere surmise and based NORVELL, consequently judg- conjecture that and Justice. questions Law of can not ment stand. according state litigation, evidence,” distinguished as “no appellant, attorney for resulted ment of of “insufficient evidence” fact contentions probably the ac last from “the worst and “overwhelming preponderance of or underpass” Burnell cident occur at the evidence,” King, only King v. are raised. No. Highway on U. S. between Appellant’s Tex.Sup., Pettus, Kenedy Vail and Texas. towns of prayer judgment in its for rendition Ennis, County, Bee the sheriff of testified and remand of the case. favor a twenty people had from fifteen to underpass, been killed in accidents a total of The case was submitted appears pertinent that the route of twenty-nine it now Those to our and issues. locality, changed in the has been highway inquiry following: are the collision which probably as a result of the Question you “Do find from No. 1: this lawsuit. occasioned preponderance of the evidence that a Powell drove driver truck flat- involved were a vehicles said truck to his left-hand side of the appellee, E. L. topped Pow- truck owned point highway approached Company Trucking (a co- and Sons ell question in the accident ? Answer: Powell, composed of L. H. partnership E. Yes.” Powell), gaso- and B. L. a and H. Powell Question you No. 1-a: find “Do Refining Phoenix line tank truck owned a preponderance from evidence- Powell truck was Company, Inc. act, any (inquired that such if southerly direction and was travelling in a Question 1), negligence? in No. was separators heat two treaters or loaded Answer: No.” use, con- which were designed for oil field heavy plate ap- Question you steel and were No. find 2: “Do from structed length. thirty preponderance feet proximately a of the evidence that any car- travelling act, north if (inquired truck was about in tank and 1), gaso- Question proximate 4000 gallons of No. was a approximately ried immediately ignited damages which became cause the accident line Grimes, Ralph L. resulting Answer: following the collision. therefrom? Yes.” truck, passen- of -the Phoenix the driver Question you No. “Do 26: find from Redick, F. with him M. ger riding preponderance evidence truck, were all killed the Powell driver of just prior to and at the time of the was of the collision. Redick aas result question accident in the driver of the his truck trapped in overturned cab acting truck under Powell an not be extricated before and could emergency? Answer: Yes.” burning gasoline caused reached^him Question you No. 27: “Do find from his death. preponderance of the evidence that emergency, any, arose, perhaps that this is if indicated after It is Phoenix, truck, lawsuits. Powell did of a number of driver first what ordinary prudent person for the Powell value of its would plaintiff, sued have cross-action, Powell, by under the same similar sued to done circum- truck Yes.” of its stances? Answer: the destruction vehicle. recover haps proof in certain as to the burden of you find from “Do Question No. 28: procedural factual and situations. preponderance the evidence not the the accident Questions involving excusable violations accident? -an unavoidable result of law the civil conse- criminal acci- unavoidable was an Answer: quences dis- resulting have been therefrom dent.” comparatively re- cussed a number of 46 Harvard cent law review articles. it is en- contention appellant’s It is 453, 25 Texas Law Review Law Review jury’s finding upon the judgment titled to Per- and 27 Texas Law Review 866. had that the driver of the haps the treat- 'best considered these side upon his left-hand vehicle driven his Morris, styled, that of ments is Clarence of a violation highway, which was the of Negli- in “The Role of Criminal Statutes per negligence penal and hence the code Actions,” 49 gence contained Columbia in .proximate was a se, action that such and 21, Morris’, Review “Studies Law resulting from damages cause of the Torts,” p. of Law collision. in- pointing After out that certain undisputed that apparently It is may adoption penal of stances the a státute said truck drove “driver of the grounds liability new introduce into the of highway.” his left-hand side truck to law, consequently' adop- civil control operator attempting to (An may legislation of criminal result in tion is vehicle which of movements a motor something more than substitution of an- a parts is common of its in certain defective reasonably of standard for that other de “driving” the vehicle ly regarded as man, prudent points Morris nevertheless fully effective to exercise a failure spite out that: give “to a means drive” control. “To * * * to; impel.” impetus propel; many to “In instances the sub- forward 483, Glander, proscription N. St. 92 153 stitution of criminal Shafer v. Ohio Marye, Cal.App. reasonably-prudent-man 80 601, formu- Bosse for the E.2d person in control 109, 693. “The more exact standard P. la is the use of a 250 power motor vehicle accomplish greater of a with smoothness motive to v. Chi ‘driving’ it.” Grant be that the commonlaw had al- said to the results is 97, Co., Ry. Mont. ways though 78 & St. P. tried to reach. But even cago, M. Commonwealth v. citing proscription normally P. the criminal is a 252 Crowninshield, N.E. Mass. negligence, if it is in- good test used of produce Appellee argues flexibly' may all cases it 245.) 68 L.R.A. left-hand side of the driving on this some untoward results. The doctrine penal code purports of negligence per in violation of se rob the road to “attempted its driver in that places functions. judge judicial excusable of as application of his-brakes responsibilities legislature to make on a oth the circumstances and possibly under of all could not conceive cases could attempted control the movement to proscription might ?4pply erwise which its to vehicle,” do so but was unable to provided not for and that has civil lia- part negligence on his because through that, therefore, no bility, surely has Appellant’s suddenly tire. deflated proper of a not considered limitations and is that there is this counter violation contention excuses. At times evidence, distinguished from mere as criminal is If law not unreasonable. raising the issue conjecture, per negligence ap- surmise se is the doctrine of penal stat obdurately a for violation plied of excuse to reasonable violators justified liability only ute. can be their fault—if some other than at all.” basis civilly reference to rule with The Texas penal implies and, Negligence liability code fault “If violations of the excusable fault, general beyond phrase with the Ameri- is to be extended in accord seems clear, except per- is, least, fairly per ‘negligence se’ a is misnomer.” rule and can that, jury’s against matter of further answer as a law as Morris makes the observation guilty breaking a “no evidence” and the trial court’s attack “some defendants lajw civilly placing liable and submission and criminal should be 'burden proof supported ac- technically seemingly the Texas entitled some defendants prosecution quittal should authorities. in criminal liability civil held suits. in civil Since liable indicated, As above legislature, has not with been dealt provisions applying penal a statute responsibility of judges avoid the cannot liability determining a standard for civil peculiar to civil lia- problems deciding the one for the decision the civil court. the stat- bility even after which remain Likewise, recognizing the matter of an ex interpreted.” properly ute has been penal article, cuse violation of a once penal ordinance A enforci-ble statute adopted presents standard, has been as a given fix- necessarily be effect as must not preliminary matter for the court. When a for, liability constitutional ing civil “If (suitable violation statute criminal statute, interpreted, unwise enacts properly determining liability) civil shown may be responsibility, courts criminal nothing more, wholly unnecessary it is in accordance bound convict reasonably-prudent-man submit stand re- damage judge a suit statute. But when negligence. ard of The violator the stat of stat- breach of a criminal fuses to rule that guilty ute is negligence as a of of matter * * * he not dis- negligence ute Betterton, law. Texas v.Co. 126 Tex. command, for the obeying legislature’s the 1039; Mason, 88 S.W.2d Shaver v. Tex.Civ. responsi- legislature has ordered criminal 450; App., 13 E. S.W.2d Ben Keith Co. v. liability.” Morris, p. bility- 168. civil 241; Minor, Tex.Civ.App., —-not 103 S.W.2d Wright McCoy, Tex.Civ.App., v. 131 S.W. penal Similarly, provision a for 52; Younger Marino, 2d Bros. v. Tex.Civ. may be tak some ineffective as reason 109; App., 198 S.W.2d Co. Produce liability, if a for civil suit en as standard Jessee 750; Ewing, Tex.Civ.App., v. 213 S.W.2d Carver, Clinkscales v. purpose. for able the Tex.Civ.App., Nall, v. Chesshir penal (wherein P.2d 777 22 Cal.2d 136 248; Mathis, Tex.Civ.App., Harbert v. 230 as such ordinance 'held invalid was because 380. S.W.2d properly published). not logically It would follow whenever penal provision forbid- Undoubtedly the tending evidence is submitted show .to ding the side of the driving on left-hand the violation of the statute excusable appropriate prescribes an standard for road justifiable or constituted at most mere liability, not but does measuring civil this liability technical violation which civil for rigidly applied under must be mean that it imposed not be the trial should court should think any and circumstances. We all fact prudent reasonably submit the in man test holding. trial was correct in so the court words, if form._ some In other the evidence trial court sub- It will be noted the fairly excuse, then, of raises issue having reference mitted two issues of commission violating penal for ^addition -claimed excuse statute embodying a criminal act issue an pf placed proof was in which burden of prudent negli man standard of (reasonably plaintiff upon as below. These gence should submitted. Mor be Hicks v. negligence, as determined issue of were the Tex.Civ.App., 263; gan, 259 S.W. Taber v. prudent reasonably by man standard Smith, Tex.Civ.App., 722; 26 Safe S.W.2d 1-a)- and (Question No. “unavoidable way Webb, Tex.Civ.App., Stores S. (Question 28). issue No. accident” Stanford, W.2d Killen v. Tex.Civ. theory of emer- submitted court also App., 170 S.W.2d 792. Nos. 26 and 27. gency questions, two On reading cited, From a of the cases proof placed of burden these issues the following may rules deduced : be appellee upon the as defendant. This mat- proof is, course, of im- of the burden penal ter 1. A violation of a statute which determining validity portant of a appropriate contains an standard for deter- liability, negligence place. had taken civil constitutes If the element criminal mining lacking, intent be as a matter law. it could that the be said Legislature punish propose did one par- This rule not inexorable. 2. guilty who was view of no fault. Whatever ty violating the statute bur- assume interpretation of the the criminal statute going den with the evidence and forward taken, principle it seems on bur- violation. raise an issue as to excusable pro- den proving negligence, either that bring sufficient party If forward said scribed statute or the com- condemned (and evidence raise the issue this is a law, throughout upon mon should remain preliminary matter decision of trial party McCormick, asserting the same. court), negligence deter- then issue of Ray, 28.) Evidence, p. 39, Texas Law of § prudent reasonably man mined stand- ard bearing should be submitted. reviewing In the evidence some-, upon out, the issues set we are above proof 4. The burden of this issue what handicapped by par-. the action of the party asserting negligence, rests with the ties acting under what we believe to be a proof him rests the burden of misconception Rule (d) subd. of the' distinguished from the for- going .burden Texas Rules of Civil Procedure. By agree ward with evidence. parties ment copy a carbon facts, parts statement As illegible, to Issues Nos. almost 1-a (embodying the reasonably prudent original.” has been “filed in lieu of the man standard) (unavoidable rule duty does not accident), litigants relieve question is, Did placed upon appellee satisfactory them to file a defendant bring below for readable ward record in this evidence to raise Court. these issues ? As to see, unavoidable Smith, accident Collins v. There dispute is no facts, as to certain 142 Tex. 175 S.W.2d where it in but where conflicting^ the evidence is timated that a non-negligent mechanical conflicting may inferences there- drawn failure of a motor vehicle raise the from, required we are to view the evidence issue accident, of unavoidable Tay Winn v. light most appellee, favorable to the lor, Tex.Civ.App., 111 S.W.2d and prevailing party below, Leon, Tex.Civ.App., v. Price 202 S.W.2d asserting that certain controlling findings of jury supported are by “no evidence.” with, We make the following statement this as to Issues Nos. 26 and rule in mind. may be stated as whether or not there is any unde'rpass, At the Burnell U. S. Highway supporting evidence jury’s affirmative passed No. 181 made an S and curve under answers to these issues. These are the the Southern Pacific Railway tracks. emergency issues and constitute defendant’s approach underpass was reached to. affirmative submission its defensive is spiral means of a curve forty- approaching sues. Dixie Corporation Motor Coach v. degrees, grade slope five and the was 4.- Swanson, Tex.Civ.App., 41 436; S.W.2d per pass feet hundred feet. The was ex- Anding v. Queener, Tex.Civ.App., 138 S.W. ceptionally and hazardous marked num- 126; 2d Ry. Dallas & Terminal Co. v. highway department erous signs, reading, Young, Tex.Civ.App., “Slow”, “Turn” and indicating a passing Romo San Co., Antonio Transit Tex.Civ. zone. App., 236 S.W.2d 205. place The accident took about 10 o’clock applicable prin- night point (We have discussed of collision was to the procedure underpass, upon from north approxi- law and ciples and rules of tangent. of mate standpoint an excusable violation The Powell vehicle had ne- sharpest point gotiated may well be that a crim- the curve and penal statute. place the collision occurred at a accepting basis where the a factual inal court straightened highway appellee out for a short dis- here that advanced similar to leading underpass proper. tance to the statutory as a inter- would matter decide standpoint penal From the driver violation of the of -the pi that no code etation sur- physical wreck tures oc- vehicles truck, impact of the con- photographs These thereof. roundings high- portion left-hand on the curred evidence items important most stitute way. plain- including them, Some case. in the notification, Sheriff Immediately after . enlarged 4, were 1 and Nos. Exhibits tiff’s the scene County came of Bee Ennis Vail Said in size. inches by 15 inches effi- prompt amade accident num- mentioned exhibits photographic an' ex- Ennis thereof. investigation cient reproduced. here are ber pic- numerous took photographer pert 1No. Exhibit Plaintiff’s photograph opposite In the as taken taking designated direction the with pointed Exhibit No. the camera was pointing photograph camera south. This is underpass, primary appellee’s north. This shows the the exhibit basis for contention truck, the the the rear of Phoenix tank issue for the of excuse of the violation penal 'by with col- overturned Powell which it code was the truck raised evidence. the is seen of the right lided. Far to one theory It appellee’s presence that the separators' or which heat treaters constitut- upon its truck the high- left-hand side of the freight The ed of the Powell truck. the way was not due to fault driver, of the but, rather, designated 4 is photograph as Exhibit No. to a mechanical failure over to-wit, answering signal he control, a blowout received an he no which had before passed following front tire While he was left vehicle. or sudden deflation of the forty travelling the truck about he was Powell truck. hour, when miles an but down a little slowed support ap- upon to The evidence relied got he passing close to it. After he traveled pellee’s is as follows: contention fifty-five fifty at a rate of about miles appellee Powell, a member of Herbert until after hour and met motor vehicles for- partnership, about testified was Rediclc Road, County he Line some had reached the ap- ty-six years for age and had worked underpass, two miles where he south of pellee road sixteen months about Company Grocery met E. truck. an H. B. local driver. three months as a driver and appears It that the Phoenix truck entered in no involved During that time he had been upon Highway U. 181 from S. No. possessed a accidents collisions. Redick or County Line Road somewhat ahead of the not and was chauffeur's license commercial northerly proceeded H. B. E. truck and beverages known to drink alcoholic Kenedy. direction toward possess job. him to considered witness Photographs the wreck that the show average as a driver.” a “little skill above physical truck turned over. The carefully checked make was The truck position indi- condition of vehicles mechanical condi- sure was first-class right the Powell cate that the side of trip from it on tion before Redick took vehicle, Phoenix struck left side Christi, Corpus Tulsa, Oklahoma, Texas. indicating that the Powell truck over- had outfit. The tractor It a tractor-trailer immediately turned before or at some time on the front and dual single had wheels prior collision. all The tires were wheels on rear. left Tulsa. good shape when the truck brings us to a detailed consideration photograph plainly of Exhibit No. 4. This Graves tes- Appellee’s Charles E. witness upon shows two distinct tire accident, marks day he of the on the tified that portion pavement. Powell left-hand thirty minutes to Redick talked It conceded that these were made front Texas, was located about which Seguin, witness, wheels the Powell truck. A W. underpass. This the Burnell from miles Brown, Jr., W. testified that he had seen place shortly before dark. took conversation pavement these marks not familiar appears that Redick was they comparatively were short —not over Christi, Corpus and this mat- into roads forty fifty length. feet in or exhibit witness said ter discussed. tired; shows that the mark made tire left sleepy appear or his Redick did about twice as wide as made liquor alcohol, did not smell of breath right spot tire. The near possession white the end of and in be alert he seemed to (near the left tire mark foot of all his faculties. highway patrolman) was identified sev- appellee, Davis, witness for testi- D. O. eral rim witnesses cut and it in- Pettus but on the eve- lived in that he fied point ferred that at this the Powell truck family his October ning its commenced overturn. prayer- meeting. They Kenedy to a iwent to highway along Appellee heavily place relies testi- stopped at a Kenedy place Captain Williams, mony of F. at little M. a a traffic refreshments with heat- photographic-expert. truck loaded noticed a witness had Davis by. truck) pass experience Pennsyl- The had extensive with the (the treaters fifteen travelling about miles vania Motor Police and the California truck was Highway perfected passed this truck Patrol. He speed that he had said a Davis hour. Kenedy analyzer and two or camera and a deceleograph, out of miles a de- six about underpass. measuring Burnell motor stopping the vice vehicle north of miles three lights truck’s were distances and reaction of the the time that drivers. He noticed north-bound cars. He had also meeting conducted over a when thousand dimmed . signalled perfecting the truck driver and traffic tests in Davis, these devices and He, by ported designated as personally investigated photograph automobile the over plaintiff’s detail testified No. which shows collisions. Williams in some exhibit truck left tire to the construction a nine inch front of the overturned Powell of fabric, right plys burning as in than tire. Instead much faster of four tire, tire, ordinary although a it catch was last tire to the case of automobile layers argued is is tire truck tire has twelve fire. It that this shows fabric every particular damaged disintegrated con- had much been and had heavier in By fact, burning.) and the struction. of this somewhat before it commenced reason whereby in From right means is affixed and held the fact that the wheel was still wheel, some, place by right inch turning on the rim the a nine evidenced mark, wavy make mark truck tire would hot a “adhesion” Williams concluded that pavement, put such auto- not as a deflated Redick had his brakes on at full ordinarily make, 'but, force, but, on nevertheless, the braking mobile tire would was relatively contrary, málce to would sufficient cause the left deflated tiré straight mark, by tendency as- was the skid. shown The natural a motor ve- mark the left of the Powell truck. hicle a flat tire with front 'tire to swerve tire, is, around the flat that the tend- The witness made technical distinction ency a vehicle with a flat left tire’ pavement by between made the marks on pull tendency it to to the left. This was ac- right and left front wheels of the Powell by centuated fact that truck had right or track truck. mark charac- approach- right-hand come around a curve mark, as an the left terized adhesion while underpass. ing. the Williams testified mark; by was referred to him as a skid average reaction time of the automobile being the two distinction between driver was three-fourths of a second. by adhesion mark made a wheel which was explained period elapsing This was as the extent, turning still while the to some happened time something until the by mark skid was made wheel which by put- time the driver could react thereto position by locked action hence brake ting taking appro- brake other or turning. between the difference priate twenty-five action. A vehicle types generally two ascer- of marks per twenty- miles hour would travel about by rubber tained the different amounts of during seven feet this reaction time. particles deposited upon pavement. From the set evidence above forth in a width of the marks was measured two highly compared abbreviated form as simple ascertaining width device of facts, argued the statement of it is that: pavement pro- and calculating the portionate part period 1. It was shown over thereof covered the tire marks. some nineteen months Redick According Williams’ calcula- was a careful tions, right driver had been width of the involved no mark was accident. slightly inches, less than five while the The time (from p. 2. dusk to about 10 width of the left mark was 9.8 inches. m.) taken Redick to travel eighty undisputed that the front wheels of the Seguin underpass miles from to the indi- Powell truck were inches in nine diameter. cates Redick had driving not been anat According Williams, a nine-inch tire speed. rate excessive normally eighty pounds ninety carried According person 3. to the last to ob- pressure and when thus inflated makes a collision, serve the Powell truck before the road contact of about five inches twelve driving prudent Redick'was at a and careful approximately sixty square inches. speed. rate of ' From the width left track he inferred The left front tire the Powell that the left tire was deflated and in that truck blew out or shortly became deflated presented’a condition road contact prior the collision. This is to demonstrated by twenty-four ten square inches 124 by mark of the the wide left front tire (Appellee theory inches. contends that the forty fifty which was some to feet length in a deflated front sup- left tire is place chipped further and terminated in- a in the

902 prosecuted. adequately trial could pavement by rim be made the left when murder, example, charge of on a For over. trade started to turn gun dis-' the defendant’s found upon tire 5. The absence of tracks that he charged; this we infer from explained right-hand side road is of the it; infer discharged from this we and of the the “reaction time” of the driver and it was bullet which struck that his truck. Or, the defend- deceased. killed that while 6. It is reasonable conclude to sharpening have been ant is shown to right-hand side driving Redick was on his knife; argue this that from we highway, deflation or blow- of the a sudden upon design to use it the de- had occurred; this, that out of the left-hand tire ceased; argue from we that this and pave- immediately marking the while not of this de- the fatal'stab was result suddenly to ment, swerve caused the daily sign. In these and innumerable left; by the time Redick could to the that upon up build instances we inference brakes, apply which caused react and inference, (until yet in and no Court upon pavement, the tires leave to marks very times) thought modern ever left, passed and vehicle had over to forbidding departments All it. of rea- through fault of his own was un- Redick soning, work, every day’s all scientific able control the truck which overturned to trials, day’s proceed up- every life and path oncoming Phoenix vehi- judicial on such data. utterances cle. imprac- that sanction fallacious and limitation, originally put ticable for- consideration, we After careful authority, without must be ward taken the evidencé was have concluded that suffi only particular as valid for the eviden- of excusable viola cient raise issue tiary upon.” facts therein ruled 1 driving prohibiting tion statute 434, Wigmore (3d Ed.), p. on Evidence of a motor on left-hand side vehicle quoted 41. notes to the section evidence, although § Appellee’s the road. contain to a citations number of cases testimonial of its contradicted certain upon point. also, See 20 parts the inferences and con well as Am.Jur. 169, Evidence, 165. therefrom, § be neverthe clusions to drarwn jury less, determina a matter presents Further, we believe testi against rule violate the tion. It does not mony appellee’s expert Williams does upon another.” This “one inference basing proper opinion not exceed the limitations of employed by the often form of statement is testimony. properly regarded It can be writer, courts, has used this been as “no evidence.” Ft. Worth & Denver rule a shorthand rendition Thompson, City 501, R. Co. v. 75 Tex. 12 S. upon requires verdicts based which be 742; Missouri, W. & Kansas R. Co. Texas guesswork. surmise more than Sherman, Tex.Civ.App., of Texas v. 53 S. literally applied all factual rule not be can 386; Gulf, Downs, W. C. & S. F. R. Co. v. pointed out has been circumstances. 318, Tex.Civ.App., ref.; 70 S.W.2d wr. Ft. Wigmore in his monumental work Dean City Burton, &Worth Denver R. Co. v. Evidence, quote therefrom: and we Tex.Civ.App., Ragan suggested an ‘in- once “It was MacGill, Or. P. 72 A.L.R. will inference’ not be “Opinion ference Annotation, Evidence as desired permitted, i. fact c. other condition automobile or motor ve circumstantially must itself be es- used A.L.R. hicle.” 77 Auto Am.Jur. evidence; by testimonial tablished mobiles, 653'. § repeated by suggestion has been this raised, jury The issue being Courts, actually sometimes several findings that had not met the bur enforced. placed persuasion properly den of rule; (negligence) (un is no such orthodox nor Issues No. 1-a and 28 “There were, hardly single accident) must If there avoidable stand and can be. this

903 appeal. Midwest fatal to the Selman v. Powell truck to the left side 140; Haulers, Ill.App. 154, highway. plea justification 309 33 N.E.Zd This is not a 342, Turner, Ky. driving S.W.2d highway, v. 299 185 the left side of the Hobson 550; 215, Sellnow, plea Minn. 46 N. Otto 233 but a v. that the driver the Powell 641, 152; Gag Kelly v. W.2d 24 A.L.R.2d truck did not drive truck to the left side non, 160; 113, Ingle 121 v. the highway. jury 236 N.W. The Neb. decided this con- 562; Cassady, 497, Vir against appellees, 208 181 S.E. tention N.C. when found it Burton, 182 ginia State Ass’n v. Va. that the Fair driver of the Powell truck it drove 365, 716; Kielsmeier, highway. 28 S.E.2d Eubanks v. to the left might side of the One 48; 484, justified Wi 171Wash. 18 Wellons v. be in driving P.2d to the left side of the Selig 852; ley, 543, highway, 24 P.2d road to avoid Wash.2d 166 in the obstruction Orth, 199, if man 236 N.W. 115. but he is v. Wis. thrown to the left side he has not driven there. plaintiff -appearing jury The found having that the driver of upon findings which failed to secure issues the Powell truck drove to the left-hand side liability against necessary were to fix highway of the and that such act awas defendant, partic- we need not discuss proximate collision, jury’s cause of the ularity relating appellee’s evidence further finding that the driver’s act of driv upon affirmatively submitted issues based ing the Powell truck to the left side of the theory “emergency.” highway immaterial, not negligence, judgment is affirmed. as such conduct was in violation of the penal code and negligence per se. Art. MURRAY, Chief W. O. Justice. 6701d, 58, supra; 57a Arts. 801(A) §§ opinion I not concur in ma- do 801(B), Code; Texas Vernon’s Penal found, jority. jury Ques- in answer to Betterton, Texas v. Co. 126 Tex. S.W.2d tion No. that the driver ; 714; Powell 10 39 Shaver v. Ma Tex.Jur. truck drove said truck to his left side the son, Tex.Civ.App., 450; 13 S.W.2d Harbert point approached highway' Mathis, as he Tex.Civ.App., 380; v. 230 S.W.2d question, Ques- McCoy, accident in answer to Wright Tex.Civ.App., 131 S.W. 52; such act prox- tion No. found that was a 2d Ewing, Co. v. Produce Tex. Jessee damages Civ.App., imate of the accident and re- Nall, cause Chesshir v. sulting therefrom. There was doubt Tex.Civ.App., 218 S.W.2d 248. upon being the Powell left rendering judgment The trial court highway at the time side of the of the colli- 'did, impliedly which he found that sion, but the decided right Powell truck was on its side of the was, get jury did it on the side of how left road at the time blow-out occurred and it jury answered that highway? was thus pulled thrown or to the left side. driving its driver it there. got there my -opinion In there no evidence to sus- precludes finding the idea that it finding, were, tain such a there if pulled the left The colli- thrown or side. jury’s finding finding is in conflict with the point on highway at a sion occurred that the Powell truck was driven to left was unlawful to left where it drive any event, side of the road. In from the all, being road in an under- side of the just in this case it evidence as reasonable zone, no-passing pass, in a suppose that the Powell truck was on the 6701d, 52, Art. 57a and Vern- curve. §§ highway left at the side of time the Ann.Civ.Stats. on’s suppose occurred as to blow-out it was right on the side. Appellees’ theory was that a oc- bloiw-out respectfully opinion to the tire on the left front wheel of I dissent curred truck, pulling throwing majority. thus the Powell

Case Details

Case Name: Phoenix Refining Co. v. Powell

Court Name: Court of Appeals of Texas

Date Published: Sep 10, 1952

Citation: 251 S.W.2d 892

Docket Number: 12423

Court Abbreviation: Tex. App.