*1 case, holding in this of our In view necessary appellant’s remain- to discuss

not

ing point. the serv question concerning present at not he

ice citation will appellant, because

retrial of ap its appeal, has entered

prosecuting this Court, in this but

pearance, in the trial court proceedings

further v. T.R.C.P.; McKanna

well. Rule Bonanza, Lee, 337

Edgar, supra; v. Inc. (Tex.Civ.App.

S.W.2d —Dallas h.). n. w. court is re- trial aside, re-

versed and set and the cause is

manded for a trial. new SHEPPARD, Appellant,

Leuna Appellees. al., et

Juanita JUDKINS

No. 8039. Texas, Appeals

Court Civil

Texarkana.

Dec. *2 Highway High-

where No. 67 intersects way Pleasant, City No. in the Mt. intersection, County, Titus Texas. At this Highway highway No. 67 a two-lane is. running east and Highway west. No. 271 point at the of intersection is divided into highway a four-lane running north and Appellee, Judkins, south. driving was belonged Appellee, automobile that Mur- ray, going Highway east on when she highway reached the intersection. laws, obedience approached to the she intersection and brought the car to a com- plete stop. She looked to her left and to right. being She saw the car driven by Appellant, which was north, intersection from the about one city two away. blocks appellees Both testi- they fied that four-way knew that awas sign stop and it looked Appel- to them as if going lant obedience to the They proceeded law. then to cross the highway. Appellant disregarding the laws stop, must car into the she drove her being occupied by Appel- side of the car Brelsford, Hatchell, Ramey, Michael A. Appellees testify lees. Not did the Hutchins, Tyler, for Flock, & Devereux thought they Appellant going appellant. but, also, stop, Edgie Peoples, a sister of Appel- car who McDowell, Smith, & William Johnson lant, she, too, thought Appel- testified that McDowell, appellees. Springs, for Sulphur stop.

lant There red going are flash- ing lights large stop signs; at four one DAVIS, Justice. highway each of the four entrances to the intersection. case on handed down opinion The 2, 1971, and the is withdrawn

November The case was tried jury. before a thereof. following is submitted lieu special answered all of the issues in Appellees except Special favor of the damage suit filed as a result of This in which it Appellee, found of two automobiles where two a collision Judkins, proceeded into the intersection each other at almost highways crossed when it was not safe to do so without inter- stop signs complete right angles with four Appellant’s ference or collision with the ve- pro- stop before requiring all traffic to Ap- hicle. The then exonerated the highway ceeding across the intersection. negli- pellee, Judkins, contributory Plaintiffs-Appellees, Juanita gence, by their Issue No. answer Defendant-Appel- Murray, sued Adaline preponderance 17 where it found from lant, Sheppard, Leuna for damages conduct was the evidence that such personal injuries damages to their car negligence. as a result the collision which occurred on November there is much to be said about Since highway special This is a controlled submission at a con- of the intersection, place copy highway case. accident occurred at a trolled will we NO. 5 ISSUE to the Trial “SPECIAL submitted issues as They thereto. answer Judge and preponderance youDo find from read follows: Sheppard’s Leuna that defendant occasion apply failure to her brakes 1NO. ISSUE “SPECIAL *3 in ? you preponderance find from a Do do’ or do Answer ‘We ‘We not’. failed Sheppard that Leuna evidence prudent ordinarily as an keep a lookout such Do ANSWER: We ordinary care person in the exercise you If foregoing have answered or similar kept the same under would have special do’, then issue ‘We answer ? circumstances issue; following not otherwise do answer. not.’ do’ do Answer ‘We or ‘We NO. 6 “SPECIAL ISSUE We do. ANSWER: preponderance a you find from Do foregoing If have you answered if negligence, any, was evidence that such special do’ answer the issue then ‘We ques- in collision cause proximate a issue; not following answer: otherwise do tion? 2 ISSUE NO. “SPECIAL or do not’. Answer ‘We do’ ‘We preponderance of you Do find from a DoWe ANSWER: any, negligence, such if evidence “The driver of vehicle of the collision proximate cause street road- of a different intersection question ? stop, yield way is use of such immediate do’ or do not.’ Answer ‘We ‘We any stop sign, intersection in obedience to We do. ANSWER: may only proceed and, stopping, after so safely enter such driver 3NO. “SPECIAL ISSUE or colli- interference without street different sion with traffic find you preponderance Do from roadway. Shep- Leuna evidence that defendant pard’s stop in to the failure to obedience light ques-

flashing red occasion NO. 7 ISSUE “SPECIAL negligence? tion was preponderance of from a youDo find do’ or do not.’ Answer ‘We ‘We Shep- of Leuna that the failure evidence driven pard yield to the ANSWER: We do. negligence? Juanita Judkins If you have answered foregoing Do Answer ‘We do’ ‘We Not’. special issue ‘We do’ then answer the issue, otherwise, following do answer: Do ANSWER: We you foregoing If answered the have “SPECIAL ISSUE NO. do’, then issue ‘We answer otherwise, Do find you issue; a preponderance following from do not answer: any, negligence, that such if proximate cause of the collision "SPECIAL NO. 8 ISSUE question ? you preponderance Do find from a Answer do’ or do not.’ ‘We ‘We the evidence that failure of Leuna Sheppard yield ANSWER: We do. vehicle driven probability, require will, in reasonable Juanita Judkins injuries of her for treatment question? future of the occurrence question? from the resulting occurrence do’ ‘We do not’. Answer ‘We cents, any. if in dollars Answer Do ANSWER: We ANSWER: $500.00 ISSUE “SPECIAL NO. ISSUE NO. “SPECIAL paid if now money, any, if

What sum cash, preponder- you find from a do any, paid if now money, sum What rea- fairly ance of the evidence would preponder- cash, find you from sonably compensate Juanita rea- fairly ance of the evidence would *4 you from a injuries, any, if which find Murray for sonably compensate Adaline preponderance resulted of the evidence find from any, you which injuries, her if in question? from the occurrence resulted evidence preponderance question? in the occurrence from following: elements may You consider any, damages, if none other: following elements You consider any, damages, if and none other: anguish Physical pain a. and mental past. she has suffered in the which anguish pain Physical and mental a. past. in the she has suffered which anguish Physical pain b. and mental she which, probability, in reasonable anguish pain mental Physical b. in the will suffer future. probability, she which, in reasonable in suffer the future. will past. c. her in earnings Loss of cents, any. Answer in dollars and if which, in earning capacity d. Loss of sus- probability, she will reasonable ANSWER: $500.00 tain in the future. cents, any. in dollars and if

Answer 13 “SPECIAL ISSUE NO. $9,500.00 ANSWER: preponderance of the evi- Find from a expenses, any, dence reasonable if for 10 ISSUE NO. “SPECIAL necessary medical care received Adaline past of her Murray in the for treatment preponderance Find of the evi- from resulting in injuries from the occurrence any, for expenses, the reasonable if dence question. necessary hospital medical and care re- in past dollars and cents. in for Answer ceived Juanita Judkins injuries resulting from treatment of ANSWER: $42.00 question. in occurrence the amount ‘MARKET means VALUE’ cents, any. in dollars and if Answer by willing paid cash be which would re- buy, but is not buyer desires who ANSWER: $368.95 de- who buy, willing to a seller quired to necessity sell, no sires to but under ISSUE 11 “SPECIAL NO. selling. money, any, paid if if What sum now cash, preponderance you do find from a NO. ISSUE “SPECIAL compensation evidence evi- preponderance of the Find from a expenses, any, for neces- reasonable if County, market Titus dence the value

sary care medical Juanita ISSUE NO. Texas, Murray’s im- “SPECIAL automobile Adaline question. occurrence mediately before preponderance you Do find from a conduct, any you cents, that such if any. if Answer dollars cause of found, have so ANSWER: $850.00 question? occurrence NO. 15 ISSUE “SPECIAL do Answer ‘We do’ or ‘We not’. --- of the evi- preponderance Find from a ANSWER: County, in Titus market value dence the Texas, immediately after “SPECIAL ISSUE NO. of such vehicle question. the occurrence you preponderance Do find from a cents, any. evidence that on the occasion in dollars and Answer started her from vehicle Juanita Judkins ANSWER: $200.00 stopped a time when said position at such safety movement could not be made with ? of a the driver “You are instructed of a Answer do’ or not’. ‘We ‘We roadway is different street or of im- do not We stop, yield and ANSWER: *5 in obedi- mediate of such intersection use you foregoing spe- If have answered and, stop- after so any stop sign ence cial issue do’ then answer the follow- ‘We driver only proceed when such ping, may issue, ing special otherwise do not answer it. without safely the intersection enter traffic or collision with interference NO. 20 “SPECIAL ISSUE roadway. such different street you preponderance Do find from a 16 NO. “SPECIAL ISSUE conduct, you evidence that if any such have found, negligence? so preponderance of you find from a Do ques- occasion the evidence Answer do’ or do ‘We ‘We not’. in- proceeded into tion Juanita Judkins - ANSWER: to do so not safe it was tersection when with the or collision interference without you spe- foregoing If have answered the Sheppard vehicle? cial issue ‘We do’ then answer the follow- issue, special ing otherwise do not answer do not’. do’ or ‘We Answer ‘We it. Do ANSWER: We 21 “SPECIAL NO. ISSUE foregoing spe- you If answered have answer the follow- do’ then cial issue ‘We preponderance you “Do find from issue, answer it. do not ing special otherwise negligence, any if the evidence that such you found, proximate have so NO. 17' “SPECIAL ISSUE question? collision preponderance of the you find from Do Answer do’ or ‘We do not’. ‘We any you if have conduct, such evidence that found, negligence? so - ANSWER: do’ or ‘We do not’. Answer ‘We “SPECIAL 22 ISSUE NO. do not We

ANSWER: you preponderance “Do find from spe- foregoing you If have answered ques- evidence that on the occasion following do’ then answer the cial issue ‘We keep tion such a failed to issue, not answer it. otherwise do special Juanita Judkins requires kept by an ordi- accident. The common law have been sudden lookout as would depend- all, compensation, of ordi- person in exercise full none at nary prudent ing upon circum- under the same or similar of fault. nary care stances ? Tex. per is defined Negligence se 3, as or ‘We follows: do’ do not’. Sec. Answer ‘We Jur.2d negligence may kinds of do not. “Certain We ANSWER: negligence per se. For classified as foregoing spe- have answered the you If se, it deemed act to be following do’ then cial issue answer the ‘We contrary to a statu- must have been done issue, otherwise not answer it. opposed duty, appear or it must so tory prudence the dictates common “SPECIAL ISSUE NO. person very that no careful clear you preponderance find from a “Do absence it. In the have committed failure, you if con- characterizing the actor’s of a law found, cause of have so he negligent, whether duct as the issue in question? the collision prevented foreseen and ought have negligent is one calamity do’ Answer or ‘We do ‘We not’. reference be determined - ANSWER: authorities cited to the facts.” See the therein.

“SPECIAL ISSUE NO. course, person another Of from you preponderance “Do find mat contributory negligence, as a guilty ques- on the the evidence that occasion in re they cannot ter of common still Murray tion and Adaline *6 Juanita Judkins statute, any ordi violation of cover. The had interest in joint object pur- a and the nance, duty, basis of administrative order or pose trip right, and equal of the an ex- per se. negligence usually classified as pressed implied, or to and control direct Appel the the exonerated operation each other in the of the vehicle? negli contributory negligence, any lees of of se, negligence as matter gence per or a Answer do’ or ‘We ‘We do not’. Appellant of jury convicted the law. The ANSWER: We Do.” matter law. 40 as a of Tex.Jur. many 456-463, the Sections 11-15 2d Judge We believe Trial sub- 827, Sec therein. cases cited proper Am.Jur. mitted the issues for a con- therein. See and the cases cited tion 158 highway trolled intersection collision. cited. Art. hereinafter of 6701d Sections guided Even though by we are our consti- tution, statutes, procedure rules of civil court a trial entered negligence, the common law of contributory per- Appellees. Appellant has favor we old must follow the common law that brings seven appeal and forward fected her principle rests upon that each individual points of error. society is responsible member of our for his 1, Appellant says the trial court By point own acts. of Sometimes shifts the cost judg- for overruling motion erred her innocent to primary from the victim loss obstante veredicto because responsible ment non person It all for the loss. Appellee, Judkins, violated jury found depends upon fault a determination of response statutory standard care of justice which can be as viewed a matter in violation Special No. 16 and to Issue between individuals. Sometimes the victim 6701d, Vernon’s 71(a), Article right, matter because recovers as a not Section to Ann.Civ.St., amounted since the answer public charity a for or a they have case which, a negligence per se part finding of problem stemming of a social from proximate Judkins, trying matter to follow a standard of cause 2, question; by point trial conducting collision in care. She so herself and driving the automobile to overruling court erred her motion she was so as be compliance 71, judgment non veredicto because law. Section obstante Art. 6701d as by amended negligence per Appellee, Judkins, Legis- se of the 61st 1969, lature, 1, imputable Appellee,Murray, September to because effective reads venture; they by point follows: joint on a were overruling Appel- court erred in the trial approaching entering “Vehicles or in- exceptions lant’s to fact objections and tersection Special Issue No. 18 was conditioned Special upon finding an to Is- affirmative The driver of a vehicle (a) “Sec. 71. deprived sue No. because it differ- approaching intersection of a finding as to of an unconditional whether yield or roadway stop, ent street shall or not Appellee, violation of Sec- grant privilege of immediate use Judkins’ V.A.T.C.S., 6701d, 71(a), tion Art. of such to obedience ques- the collision sign stop sign, yield right-of-way or traf- tion; by point court erred the trial public au- fic control erected by device objections overruling Appellant’s may only thority, stopping, so and after Special upon No. conditioning of Issue such thereafter when driver Special finding affirmative Issue No. safely enter in- the intersection without because, Appellee, Judkins, started or terference collision with traffic stopped position said from a roadway. different street safety; movement could not made with be single of a vehicle on a (b) driver point 5, the trial erred in over- by court roadway, lane street or or a street ruling Appellant’s objections excep- two roadway consisting traffic conditioning tions intersection, lanes, upon Spe- upon No. 21 an affirmative signs not controlled traffic otherwise Ap- cial Issue 20 as to whether or not roadway, signals, of divided street or pellee, Judkins, started her vehicle from roadway or of a street or divided into stopped position when said movement could lanes, shall three more marked traffic safety; point made with stop, yield and Appellant’s trial court in overruling erred intersection to ve- immediate use of such disregard motion answer to *7 the hicles on other street which are such Special 11, awarding Appellee, Issue No. approaching the or within intersection care, Judkins, for future medical $500.00 proximity in there- such intersection such support because is no evidence to the there a hazard and after so to as to constitute same; and, 7, point trial court erred the may only stopping thereafter Appellant’s in motion for new overruling may safely when such driver enter the trial, Special to because answer or col- intersection interference without factually supported by Issue is not No. 11 using different lision with traffic such sufficient evidence. or roadway. street Special can find Issue that we on a highway (c) controlled intersection cases The driver of on an un- vehicle approaching will be in Jury paved found Texas Pattern street or roadway 1, Charges, paved roadway hereinafter referred intersection of shall Volume a studying stop, yield grant privilege as of im- and “PJC.” any PJC, set out in to be use such has determined mediate intersection paved roadway whether it to do with the vehicle on such which anything has care; or, approaching standard of the standard of con- within the intersection proximity duct such in such there- behalf different of dif- drivers hazard, ferent after so Appellee, to as to constitute a and vehicles. We think that stop, going to Appellant thought the may only proceed thereafter stopping Appellee, on excuse may safely enter the and showed an driver when such Jud high kins’, cross part that she could interference or col- intersection without way safely. street using paved lision traffic such with roadway. obeyed the had Appellee, Judkins, approach- The driver of vehicle (d) a the other right to asume that law and had a street of a different the intersection ing driver of the other motor vehicle regulated roadway, not otherwise sign stop and the stop in to the obedience herein, by traffic control or controlled car stopped If had law. stop, yield shall and signs signals, sign stop and the obedience to the immediate use Secs. not have collision would occurred. such intersection to other charge jury, In the intersection from

which has entered the 3, court, No. asked Special trial Issue right or is such such driver’s jury: right in intersection from such driver’s to constitute proximity such thereto as you preponderance “Do find from stopping may only hazard and after so Defendant, Leuna evidence proceed thereafter when such driver Sheppard’s stop in obedience failure in- safely enter such intersection without light on occasion to the red flashing terference or collision with traffic negligence?” roadway. such different street or keeping Special seems to be This Issue obligated stop and (e) A driver Special Issue No. 5.07 PJC yield right-of-way in accord with Sec- reads as follows: 71, (a), (b), (c) (d) tions of Section you preponderance “Do find from a who is collision or inter- involved ques- that on the the evidence occasion ference traffic such inter- with other at en- stop tion Defendant failed to before yielded presumed section is not to have tering the intersection?” Act.” right-of-way this Then, inquire the trial went on to court this decided under the Since case will be such cause of V.A.T.C.S., 6701d, all provisions of Article question. collision in The jury found opinion referred to in the Sections that it PJC, Special did. In Issue No. 5.07 will of Article 6701d. be Sections 2, we find follow- 18, 22, 26, 6, 14, 13(f), Sections ing special issue: 30, 31, clearly and 35 set out preponderance you “Do find from high- regulations for a controlled rules and failure was these rules way intersection. Under traffic proximate cause of the occurrence signs regulations traffic *8 question ?” highways governing signals on to be erected intersections, highway the traffic control at If should hold that a violation of the we to requires of a motor vehicle the driver provisions of 71(a) new section would be stop. operator the motor The of se, negligence per there be circum- negligence of stop, they guilty must are justifications of raising stances the issue as matter of law. a event, an issue or such an excuse. In excuses, excuse, may submitting Judkins, had Appellee, It seems that Blades, Sup.Ct. Tex. required. Christy v. sign stop obeyed stopping at the the law Blades, Christy v. 448 thought (1969), S.W.2d until proceeding and then in not she 86, case, Secs. collision supra, is a railroad safely. Appellant admits she do so could law by the 88, governed and is not This, and to 87 stop. is addition that she did not cases. too, intersection highway they, testifying of controlled that the three witnesses 110 and penal and understands the rules laws the law knows of that the violation

holdWe neg- of must do under the circum- right-of-way, is highway intersection at a controlled presume to that or, was allowed of stances. She ligence per se; a matter law. as stop the and Appellant obey the law would governed of by a standard conduct without intersection. highway at the controlled people. other any regard any rights of to interesting in 44 a article 38, 40, 118, 124, and There is most seq., 39, Secs. et of yield 1 on failed Texas Law Review “Submission Appellant that to 144. We hold High- of Issues of use Uncontrolled-Intersection immediate the Texas,” including a way Collision Cases highway is undis- the intersection because of recent trends related discussion some puted into the intersec- proceed that she did doctrine, by se William complete the bringing her to tion without car Paddock, under the O. A. was violation Neal William stop. This mode of conduct Robert W. instructions of Chief penal of Under Sec. of the laws Texas. Justice Texas, Calvert, Supreme under yield Court of presumed it is that she failed to (e) 71, 670Id, Sec. V.A.T.C.S. we hold the Article right-of-way. the In ordinary applicable. standard of care in this case It is not even contended sup- fully The evidence was sufficient to at parties reached the intersection the port Appellee, the Jud- definitely time. There or about the same kins, any negligence of at guilty part of the was not a violation law right Appellee had a all. We think Judkins There was viola Appellee, obey presume to Appellant that the Judkins. by Appellant Appellant. tion law stop stop sign, and she penal at Blades, Christy v. upon case of relies highway could across the intersec- grips to supra. If the must come Courts safety. doing so, pro- she could tion Se,” Per “Negligence Texas law any danger of collision. ceed without already, Having done this we will do so. standard of that was used conduct Trial the issues submitted we hold Appellant col- was the sole cause Appellees were entitled Judge proper. were lision. any excuse which verdict as to out, pointed As in the above sections wrong done they might have had as 6701d, V.A.T.C.S., person ap- Art. each Appellant. jury hav on behalf proaching highway a controlled any con Appellees of ing exonerated is required stop. Appellees approached cause of was the tributory negligence that highway intersection first. In obedi- think that was question, we the collision law, Appellee stopped ence to the Judkins question, of the collision driving. the vehicle she was looked to She 1, 2, points Appellant’s we think that right. Appel- left and to her saw She v. Hammer be overruled. 5 should coming lant from the north about one (1966), (Tex.Sup.) Company, Transit Dallas city away. thought two blocks she She Collins, Tex. 885; Holland S.W.2d highway safely could cross because e.; 177, n. r. Civ.App. S.W.2d (1970), Appellant supposed she car Stiles, Tex. Company v. Roebuck Sears & inter- driving before she entered the It seems Civ.App. (1970), 457 S.W.2d 580. “stop highway section because objec proper make did not not, however, sign.” Appellee 17, 18, 20, and Special Issues No. tions to required negli- forthcoming foresee Rules Texas by Rule gence Appellant. McWilliams v. Procedure. Civil *9 Muse, (1957), 157 Tex. 300 S.W.2d there was point out that briefly We will Martin, Tex.Civ.App. 643; (1938), Lewis v. is suffi the evidence and some evidénce 910, writ 120 S.W.2d refused. Appellee, award cient, for Jud for kins, Dollars ($500.00) Hundred Appellee duty to reason- Five It was Judkins’ Lumber care. Edens-Birch prudent person, medical ably a who future understand what

HI Wood, safely intersection Tex.Civ.App. (1940), may driver enter the Company v. dis., Appel with judg. cor. without interference or collision er. S.W.2d using different street points and overruled. traffic such lant’s 7 are roadway.” say law will this about common We

negligence issues as to reasonable excuse Jury An of 1 Texas Pattern examination part anyone an auto- involved 6.01, Charges, Sec. indicates case, especially mobile collision where committee drafted highway collision occurs at a controlled conjunction to be with Sec. submitted intersection. In this under opin- no 71(a) expressed of Article 6701d special issues, Appellee, proper exonerated ion on establishes 71(a) whether Sec. or, any Judkins, se; negligence per conduct, of which standard of the violation negligence. actually contributory It con- se, negligence per or whether would be victed the se the amended establishes a standard statute sign she the stop when ran at the controlled of care. We find the suffi- intersection. my 71(a) It is conclusion that Sec. support cient to answer to Article both a standard 6701d establishes by issues as submitted the Trial excuse to it of conduct and a standard of care at an Judge. intersection at which all entrances to the The of the af- Trial Court is by signs or stop intersection are controlled firmed. flashing signals, red as the are such facts present

shown be The in the case. persons is all must RAY, standard of conduct (concurring). Justice stop reaching The the intersection. I concur the result by with reached Jus- statutory failure to a breach of a is opinion, tice Davis in his for but different duty, the violation of which constitutes reasons. negligence per se. is This a controlled intersection case and portion 71(a) That of Sec. which states: it is the first case construing 71(a) Section “ . stopping, may only . . and so after of Article by 6701d as 61st amended proceed may thereafter when such driver Legislature of Texas. safely enter the inter- intersection without The crucial issue in this case the con- ference or collision traffic given struction to be 71(a) of Arti- Section roadway,” different street or constitutes 6701d, cle Texas Revised Civil Statutes care, a standard of violation of (1925), as amended acts of the 61st negligence per does se. not constitute Legislature, September effective portion lays That statute down pertinent part The of Article 6701d is as very rule of care which nature is its follows: to, dependent upon, relative the fac- making danger. tors not re- does approaching “Vehicles in- entering vehicle, quire the driver he has once tersection. every stopped, the passage to await 71(a) Sec. driver may approaching car which from his left, right of a differ- irrespective intersection of its dis- his ent roadway intersection, street or stop, yield shall speed, tance from the its probable immediate conduct of the driver. use imposes upon such intersection in obedience a standard of care statute any stop sign, yield right-of-way sign party to view entering affecting safety traffic control device erected all of and to the factors public authority, stopping, appre- after so determine there a reasonable danger collision if he thereafter when such hension of of a *10 finding by which it- proceed evidentiary to the intersection would not

should cross Appellee In mak- self that oncoming ahead of an vehicle. establish Judkins making negligence ing guilty the factors se. his observation of reaching his con- danger, and Appellant Spe- insists that the answer to not he can enter clusion whether or in finding Appellee Issue No. 16 cial that the interference intersection without proceeded into the intersection Judkins using different collision with traffic when it was unsafe to establishes do so roadway, he is bound to use street or the element of the offense under Sec. is prudent man. ordinarily care of an 71(a) Appellant judg- which entitles ato situation, the exact or mathematical ment in her favor as a matter of un- to a situation, obvious apparent but Appellee requests special less is- Judkins' reasonably ob- prudence, ordinary man of sues, answered in her favor would servant, his that must control or justify proceeding excuse her actions right precedence. determine Ap- into the intersection when she did. short, raises of the statute the invocation pellant jury contends that need not or not whether an issue of fact as to inquiring answer an issue the com- about stop- prudence, after a man of reasonable negligence Appellee mon law Judkins in- into the ping, proceed could thereafter until the has answered exoner- colli- interference tersection without excusing ating Appellee the actions of different street sion with traffic entering the intersection when apply would roadway. Accordingly, I jury had un- already found that was it rea- test of the objective common law safe to do so. If the should excuse that be- sonably prudent man and hold Appellee it Judkins, the conduct of then given case that fore it can be said in a Shep- upon Appellant would incumbent motorist, proceeded stopped, first who had pard get finding to Appellee that Jud- it was unsafe into the intersection when guilty negligence kins was at common of law so, as a matter appear, to it must Appellant prevail law order for and surround- the attendant from all of recovery Appellee by defeat estab- pru- circumstances, reasonably that a ing Appellee lishing guilty that of con- exercising person so situated dent tributory negligence. course, Appel- Of safety, would ordinary his own care for lant would have to obtain a Missouri-Kansas-Texas not have done so. proxi- Appellee McFerrin, 156 Texas v. Railroad Co. of mate of the collision in order to cause (1956). Tex. S.W.2d finally prevail, unless the To case had established a matter of law. in the instant trial court contentions, support Appellant concerning stand question it before Blades, 448 quotes page Christy at 411 in Plaintiff-Appellee ard of care. Jud facing following (Tex.Sup.1969), stop sign S.W.2d 107 stopped at the kins had stop language: Sheppard failed her. only the leaving stop sign, thus

at “ * * * To establish a violation of Ap care exercised 6701d, Article 86(d), the railroad § pellee. required prove or ob- conclusively findings approach- tain that a 71(a) train was I construe Sec. Since ing, plainly establishing standard visible and hazardous Article 6701d as proximity crossing, a motorist to when of care relative stop- motorist either failed to after into statute, having stopped, or after Is- ping, my conclusion proceeded safely. before he could do so jury was as submitted sue No. 16 These are the of the offense. and the elements facts certain inquiring about ab- they Once are established and only to an to such issue amounted answer

H3 6.01, amounting to propriate of instruction set Sec. sence circumstances out excuse, supra. legal justification or the motorist guilty is of negligence of as a matter court correct in submit- trial

law.” it ting it when negligence issue as did 17, Special immedi- case, submitted Issue No. persuaded I present am that in the ately of care issue following the standard it mandatory Appellee for Judkins trial court (Special 16). The Issue No. request the court to submit excuse conditioning the was further correct portion issue because that of Section 71 No. (Special Issue cause issue driver, (a) stopping, stating that a after neg- on an affirmative to the 18) may only proceed thereafter when 17). Kel- ligence (Special Issue No. issue driver safely enter the intersection Goodrum, (Tex. ley v. 935 378 S.W.2d without interference or collision with traf- ' Civ.App. 1964, writ); War- Houston no roadway, fic such different street or Thomasson, F. 268 ren Petroleum v. Co. establishes a standard of care Baker, 306 1959; Booker v. 2d 5 5th Cir. “ordinary prudent tested the man” test. (Tex.Civ.App. Dallas S.W.2d 767 portion If the last had 71(a) of Sec. estab- ref’d, Ross, e.); v. 371 S.W. wr. n. r. Rash conduct, lished a of would standard then it 109 Antonio (Tex.Civ.App. 2d San necessary Appellee have been for Judkins the ref’d, applies it e.), wr. n. r. requested have and received a favor- Meyers, Hemphill Judgment;” “Ritche v. excusing able answer jury from the Austin (Tex.Civ.App. 469 327 actions S.W.2d entering the 1971). it unsafe so. Metals, Impson, Inc., v. Structural Special Issue No. 16 been would have Corpus (Tex.Civ.App. 261 469 S.W.2d submitted, my better opinion, the trial if that concluded court 1971), Christi had jury

court informed the “ordi- that the shalt is a “thou if the statute involved nary prudent applied. man” test was to be that establishes not” or a statute statute However, it necessary was not to submit conduct, violation a standard Special both Special Issue No. 16 and se, then negligence per which constitutes provided No. 17 in the manner has party that a found jury once the has Special the trial court. Issues statute, it be- by his actions violated could been combined into one have party to ob- upon that incumbent comes issue with the out in 1 instruction as set excusing his con- findings tain favorable Texas Jury Charges, 6.01, Pattern 161 Sec. losing the case duct order to avoid fact, presumed because it is as a matter of same If this negligence se issue. that Appellee instance Judkins his ac- finding excusing party obtains yield failed to statute, may still he violating the tions in immediate use of such intersection as set if law negligence at common guilty of 71(e) out Sec. of Article 6701d because so find. should got proceeding through she hit while 6.01, intersection. Sec. 1 Sec. P.J.C. Impson my construction “Failure to I that Yield.” do not think that concluded supra, Court that misleading Special Issue No. 16 was so that one violated is that was the statute as to confuse jury, and since care, then a standard establishes Appellee any neg- exonerated fol- be submitted should special issues ligence Special Issue No. feel I : lows consequence is of no trial court actions inquiry about An jury they apply to tell failed were to violating the stat- accused party “ordinary prudent man” test. I pru- “ordinary in terms ute 16 and recommend Issues No. man” test. dent ap- be combined into one issue with Blades, supra; Hammer v. Christy 2. The issue See (or combin- *12 Co., single (Tex. of ing issues 1 and into a Dallas Transit 400 S.W.2d Refining v. negligence appropriate Phoenix Co. Sup.1966); issue with the Powell, 892, (Tex. outlined in 6.- 896-897 instruction as Section 251 S.W.2d ref’d, P.J.C., Civ.App. Issue No. wr. illustrated San Antonio page 161). e.). at n. r. am in proximate 3. The I that I imply cause issue condi- do not want holding in upon finding agreement majority tioned an affirmative with the I preceding to the I am not. negligence Impson because issue. the man- agreement am as far as issue, damage upon 4. The conditioned ,be should ner in an finding preced- affirmative to the submitted as I have above outlined. ing proximate cause issue. that a Impson holds majority opinion 6701d, (driving See violation of Article Sec. 57 Hemphill Meyers, supra, setting out ap- roadway when required on the left side of a issues under a standard of intersec- proaching care 100 feet of an within statute. of a standard care. tion) is violation If the statute that has been violated is be that My 57 would construction of Sec. one which establishes a standard of con- conduct. it a standard of establishes duct, the violation of negligence which is se, determine always easy to not then the issues should be submitted of Art. 6701d particular section follows: whether a or a stand- care a standard of establishes 1. An inquiry to determine first if the that persuaded I am ard conduct. party acted in such a manner as to his to exercise person leaves a statute guilty be of doing that which the as, he judgment such prohibits. statute es- so, statute then the do it safe to However, if of care. tablishes a standard 2. The proximate issue, condi- persons shall all provides that statute tioned on finding that the statute flashing light to the red in obedience had been violated Spe- in answer to intersection, one it is facing an them at cial Issue No. 1. nor does discretion, leaves no part on judgment leave an exercise 3. First party’s excuse (if prop- issue a standard driver, and is therefore erly raised), af- conditioned of conduct statute. firmative answer Special Issue Appel- case, supra, No. 2. In the Booker (Defendants) lants contended 4. If 3 is rendering judgment trial court erred be answered and there anis affirm- because non obstante veredicto finding ative excusing the actions of had violated the Plaintiff had found that party first then the next issue would 6701d, 68(a) Sec. provisions of Art. be one on whether or first not Civil Annotated and Sec. Vernon’s party’s actions constituted common Statutes, con- Appellants which violations negligence. law matter as a negligence tended constituted cause of proximate were the If there finding was an affirmative Civil The Dallas Court the collision. party that first was guilty of com- stated, disagreed and Appeals mon negligence, law then the agree appellants should be with negli- asked whether “We gence A amounted answers to issue cause of the Baker had violated collision. that Mrs. CHADICK, statute, (concurring). was for the named or that she Chief Justice per se. guilty that reason Judge paragraph The next to last Ray’s gener- concurring opinion coincides 6701d, opinion sec. “In our Articles ally my view of the therein the class 68a and sec. come within agree that the discussed. I of statutes in which the common-law the trial court should affirmed. man prudent the reasonable standard of determining matter must be used as a *13 fact, whether not as matter of negligent. conduct a motorist is particular imposed by

The duties these absolute, they are con-

statutes are not They dispense not

ditional.

necessity of fact as finding was the conduct of a motorist

whether negligent under the circumstances. INSURANCE FIDELITY INTERNATIONAL NEWARK, NEW COMPANY OF The court further concluded that even JERSEY, Appellant, Plaintiff, Baker, though Mrs. found to have made a left-turn when she COUNTY, Texas, DALLAS SHERIFF OF safety could not do so with because the al., Appellees. et car driven so (Defendant) Booker No. 7310. close to the intersection to constitute hazard, immediate Mrs. the court held that Texas, Appeals of Court Civil (Plaintiff) Baker was exonerated Beaumont. found that her conduct did Jan. 1972. negligence. constitute Rehearing Denied Feb. the instant found Appellee had entered the intersec- so, tion when it was unsafe to do ex- but negligence by

onerated her of its answer

to Special (the negligence

issue). my is therefore conclusion that holding

no differences exist between the

in the Booker case determination present hold case. Thus would I

that an Is- answer to affirmative negli-

sue No. 16 not a se,

gence per nor violation of a stand- conduct, contrary

ard but on

determination of fact that not amount did

to anything but a violation of a standard though Even the jury

of care. found care,

Appellee had violated standard negli-

it failed to find such conduct be

gence. reasons, foregoing

For I believe court of the trial should

affirmed.