*1 inquiry infor- supply thing, have to the additional at time would Bohannon excerpts by way mation the loan was closed have confirmed McLean needed would bonds, company’sby-laws. given latter from the that Bohannon had in fact On bonds, executing them, Bartling date Bohannon did not after disavow the to deliv- ery say Bartling authority did he had nor to to McLean. By every implication
deliver the bonds. approved delivery Bohannon ratified After mature consideration by Bartling indi- bonds and further Supreme analysis of the Court’s act Bartling cated that would continue holding that there was some evi its by furnishing matter the additional support jury’s dence to requested. information McLean authority Bartling apparent did not have bonds, concluded that deliver the we have inquire If McLean had decided factually insufficient the evidence is Bohannon, logical someone other than it is support finding, against so Lynn Gregg, that he would have called great weight preponderance of the evi already since he knew from the Houston wrong. clearly to be dence as Gregg office Great American that regional manager for the in Kan- company stated, reasons For the City. sas McLean had also noted from plaintiff nothing take trial court power of attorney attached to bonds American Insurance to defendant Great Gregg, along Bohannon, un- reversed, as to Company is and the cause authority limited re- execute As bonds. to the trial court parties such is remanded gional manager, Gregg would been have trial. new supervisor administrative of both Bohan- remanded. Reversed and Bartling. non and Gregg testified at the trial he was operations surety
unfamiliar with department regional
bond office actually
did not powers what know Bohan-
non had in bonding Gregg matters. knew
that Bohannon head of the bond de-
partment and had been selected by Great METALS, STRUCTURAL INC. et al. American knowledgeable in the field. It is not expect Gregg, reasonable to et al. Grover IMPSON day closed, the loan was would No. 591 . undertaken, by McLean, if called to do days later, more than he did four Texas, Appeals of Civil McLean called for excerpts ask Corpus Christi. by-laws. occasion, Gregg On the latter April 22, 1971. referred the entire matter to Bohannon be- cause, said, he did know about bonds Rehearing Denied June Bohannon did and was the man charge of such business. circumstances,
Under such ap- it seems
parent inquiry by further McLean loan, time of closing either call-
ing Bohannon by calling Gregg, would
have been fruitless insofar as it prove disprove Bartling’s
have served to
authority any- to deliver the If bonds.
262 Seaman, M. W. Russell, &
Keys, Watson Christi, appel- Meredith, Jr., Corpus lants. DeAnda, Ed- R.
Edwards William & Christi, ap- wards, Corpus Longley, Joe pellees. OPINION SHARPE, Justice. rendered appeal
This is from appellees recover after trial $73,930.45. sum of appellants aggregate Metals, Inc., and Appellants Structural Appellees Polanco, below. defendants Joe LeBourveau, her joined are Mrs. Ida LeBourveau, and Gro- N. husband Warren Independent individually, Impson, ver Impson, de- Ivah of the Estate Executor ceased, plaintiffs below. by appel- asserted action
The causes of Tynan, near a collision lees arose o’clock 8 on about Texas November P.M., being truck driven between a Joe Metals, belonging Polanco to Structural T. Inc., driven and a car J. Impson Mrs. Hall which Mr. Grover Le- Frances their Mrs. Ida daughter, Bourveau, passengers in riding as Shortly prior to collision rear seat. di- traveling same in the both vehicles were northeastward, rection, on State generally Highway outside the town Just Tynan, Polanco was Structural Metals Truck on its left hand attempt- overtaking and and was by Hall, ing driven when the the car car turned the left front of the truck generally Farm Road which ran toward northwesterly in a direction and made a “T” intersection with near point of Impson the collision. Mrs. killed and Impson and LeBour- Mr. Mrs. injuries veau suffered serious a result of Hall is not this accident. suit. agree appellants. special is- We trial court submitted through 6 sub- jury. Issues
sues to liability theories separate three mitted first whether there consider We in- by appellees. Issues relied legally sufficient to raise his ve- drove Polanco quired whether Joe If of excused *3 roadway when the left side of hicle on none, question plead there was then the inter- 100 feet approaching within ing re becomes The evidence immaterial. action question whether such and section lating justification of excuse of the occurrence cause proximate was a statutory for the was in substance an- were these issues Both of question. Polanco, Mr. Mrs. follows. LeBourveau jury favorably appellees. to swered and Impson poten Mr. were the three to in answer to issue find refused tial witnesses to the latter accident. The lookout, proper keep failed to Polanco two, riding who were in the rear seat involving number and issue car, the Hall did not know much about how conditionally and not was submitted cause it actually happened. testimony of Joe refused to jury further answered. Polanco, Jr., was in substance as follows: Polanco to issue 5 that find in answer He was driver of belonging a truck to warning his inten- give proper to failed 1, Metals, Inc., Structural on November vehicle, pass issue 6 tion Hall and to it when was in a collision an with involving proximate cause was conditional- being operated automobile T. Mr. J. ap- It ly and thus submitted not answered. day Hall. Earlier the had same Polanco pears 1 and that the answers to issues passed through Tynan, way to Jim liability only possible 2 furnish the basis Hogg County. He had been Highway on appellants appellees. Issues 7-10 re- Tynan 359 through five or six times some damages. lated to years. three previously or four He had seen the intersection Farm Road 796 Appellants points assert eleven of err- with Highway shortly 359 but before the specifically need to or. will not dis- We accident did not recall its exact location con- cuss most them because we have respect to how far it was appeal primarily that this depends cluded town Tynan. traveling was Polanco upon disposition appellants’ point err- about per 55 miles hour as came he or number one which reads as follows: Tynan. into and was dark the truck lights Tynan, were on. some six'to sev failing “The trial court erred in to sub- him, en hundred feet ahead the Hall car jury inquiring mit an issue to the wheth- right-hand drove on to the extreme er P. the left Polanco’s on Joe Highway intersecting from an street. roadway, side At point Tynan, Highway feet within hundred of the intersec- a four-lane road. car Mr. Hall drove his negligence, tion since there was evi- some 30 per right- to 40 miles hour in dence for the lane, hand while Mr. Polanco drove some statutory violation.” per 35 to 45 miles hour in the inside lane. replied Appellees appellants’ first have point When Mr. Polanco reached where point by their and counter- first second yellow, no-passing the solid stripe termi points nated, (1) substance That horn, follows: he put honked his on his turn correctly signal the trial court to submit pulled refused left pass Mr. statutory issue on excused violation Hall’s point, automobile. At this the four specifically where such an issue was not lanes had narrowed to lanes, two but there pleaded, only by general but raised improved de- were shoulders on each side of nial, tried highway. not consent of the main Mr. Polanco in had parties, (2) presented defendants no creased speed pass vehicle, Mr. Hall’s evidence of traveling excused at per about 50 miles up plaintiffs’ picking pared exhibit which was dia- also started
hour when Mr. Hall gram he of the scene of accident. testified that when Mr. speed. Mr. Polanco Hall, Bentley going computed truck was pulled out to Mr. he could reaching per miles hour when its completed him before 53.2 brakes passing gain- applied. He found that car was Mr. Hall not started had intersection had point, hour at per his vehicle 21 miles collision speed. Hall continued ing Mr. roadway, perfect project arc to back side of the chose a right-hand well on po- Mr. of collision to a partially on the the car from least shoulder. Hall vehicle Mr. passed traveling sition down Polanco could have Bentley that he before intersection said cross-examination more than feet had chosen the radius of turn for the car if the Hall vehicle was reached exactly in the passing. starting position he commenced speeded up after *4 359, Highway left and not right-hand had his truck in the lane of Mr. Polanco When lane, rear He assumed was 10 to 20 feet from shoulder. further some change vehicle, left. turn abruptly it turned there was constant with no of the Hall signals ap- turn turn in the wheel moment the lights No brake and no from Bentley was Mr. Po- started. testified to what peared on the Hall automobile. Mr. e., inter- by photographs, road in- i. that the lanco did not that the farm shown realize immediately Highway until he ahead section Farm Road 796 with tersection was At was already than 100 from it. from the direction Polanco less feet was Joe time, preparing approaching, hidden a house that was was vehicle; yard its it trees the front that house. Mr. and when commenced Hall turn, point- Bentley that time sign also testified from the left Polanco saw the Mr. reacting a “T” automo- ing to Farm which made Polanco started Road 796 Joe bile’s movement, was less than two Highway intersection there with impact. reflect seconds until point. Photographs evidence ended, zone no-passing agree appellants there We “no-passing” not Mr. Polanco some evidence to raise the issue of excuse There at the time of accident. zone in connection with Joe warning precise Farm was no where operating Polanco Metals the Structural except Highway 359 Road 796 intersected highway truck hand side on left Up the mo- right at the until intersection. under conditions shown exist its turn When vehicle started ment the Hall in question. occasion left, position extreme its from on portion Highway with- right-hand question of next consider the We way of signal, Polanco had no Mr. correctly refused whether the trial court off to realizing that Road went Farm inquiring to submit an issue whether Joe particu- from at that left driving on the Polanco’s left point. lar 100 feet when within Manning, Jr., as negligence, Defendants called B. R. of an intersection one general denial a witness. testified that he the defendants filed He specifically plead first at the statu of three men who were to arrive and did excused Headlights tory scene of accident. addition,
both In vehicles were on. support of the contentions made signal the truck work- left turn was still they rely appellants their under showing ing, signal turn there was no Refining primarily on the cases Phoenix headlights on the car. truck’s were on Powell, Co., (Tex. Inc. v. S.W.2d beam. low Antonio, 1952, Civ.App., ref. n. r. San wr. Co., Bentley e.), Mr. as Dallas plaintiffs called Hammer v. Transit John Appellants pre- He 885 (Tex.Sup.1966). an accident reconstruction witness. say correctly proclaimed dent man standard of should be that the law was Phoenix and and restated submitted.” confirmed Hammer. summarized the rules as fol- lows : Powell, supra, both Phoe-
In Phoenix v. nix, Powell, plaintiff, cross-plain- as penal A“1. violation of a statute which tiff, damages sought to to their recover appropriate contains an standard for de- respective trial court ren- vehicles. The liability, termining civil neg- constitutes judgment dered recover. neither ligence as a matter law. Only appealed, contending Phoenix 2. This rule is not inexorable. upon jury findings for Powell which party violating may assume judgment supported by was based burden forward with conjecture mere surmise and and that con- evidence and raise an issue to an ex- sequently could not stand. cusable violation. Only “no points evidence” were raised. specifically, More Phoenix contended party bring If said forward suffi- it was judgment upon entitled to cient (and raise this findings that the driver the Powell truck is a preliminary matter decision of
had driven his vehicle
his left hand
*5
court),
negli-
the trial
the
then
issue of
highway,
side of the
which was a violation
gence
reasonably
pru-
determined
negligence per
Penal Code and hence
dent man standard
be submitted.
should
se, and that
proximate
such action was a
damages
cause of
resulting
from the
4.
proof upon
The burden
this
issue
collision. In
jury
Phoenix
among
found
party asserting negligence
rests with the
things
other
that (1)
substance
the driv-
upon
proof
him
burden
rests the
er of the Powell truck drove it to his left
distinguished
from burden of
hand
side of the
approached
as he
forward
the evidence.”
with
point
question,
accident in
ultimately held
The
in Phoenix
Court
(1-a) refused
that
to find
such act was
that
sufficient to raise
the evidence was
negligence, and (3)
(inquired
that such act
of the stat-
the issue
excusable violation
question
about in
1)
No. was a
ute
a motor vehi-
prohibiting
cause of the
recog-
accident.
court
road,
cle
left
and the
on the
hand side of
nized that
“When
a criminal
findings
ap-
that
jury
issue
raised the
(suitable
for determining civil lia-
met the burden
pellant
had not
Phoenix
bility) is
nothing more,
shown and
it is
placed
on it
Is-
persuasion
properly
wholly unnecessary
submit
the reason-
(unavoid-
sues 1-a
(negligence)
ably-prudent-man
negligence.
standard of
accident)
stand, and such hold-
able
must
violator
guilty
neg-
statute is
appeal. The court
ings
fatal to the
were
ligence
However,
as a matter of law.”
appellant Phoe-
stated that because
further
Court went on to hold
“It
logic-
that
nix,
plaintiff,
findings
to secure
failed
ally follow that whenever evidence is sub-
fix
necessary
issues which were
tending
mitted
to show that the violation of
Powell,
liability
appellee
de-
against
the statute
justifiable
or
excusable
fendant, that discussion of the issues con-
constituted at most a mere technical viola-
necessary.
cerning “emergency” was not
tion
liability
which civil
should not be
affirmed.
imposed the trial court should submit the
reasonably prudent
test
man
in some form.
Company,
Dallas Transit
In Hammer v.
In other words,
fairly
if the evidence
raises
1966)
(Tex.Sup.,
“Ordinarily penal violation of a statute pleading require sufficient the submis or ordinance a negligence constitutes as sion of an inferential-rebuttal issue
270 by no-passing sup-
raised cerning zone) the evidence.33 This followed a was not logically ported by the fact and not since submitted evidence was submitted. pleaded ground issue driv- (Polanco’s inferential-rebuttal denies or rebuts The other opponent's roadway some ing element of an on the left side cause of put action and hence is in is 100 of the intersec- defense within feet special a pleading. gen question) sue denial in But tion in was in submitted Appellees gave alleged eral denial little notice of inferen issue that No. 1. “Joe theories, to all spe guilty negligence” tial-rebuttal and without as Polanco was pleaded grounds, cific as a and that pleading guide prob court’s of the seven foregoing in charge lem of the and preparation was “Each and all of above negli- made more For it difficult. that reason which constitute acts and omissions provided by or causes gence was Rule 279 that a cause proximate question plain- not and of was entitled affirmative sub in to the collision of the only set forth.” by gen mission of an issue raised a hereinafter damages tiffs’ as appellants change allegation eral denial.34 This not con that did There was no grounds solely upon vert nature matter liable should held be defensive prox- make al a defense, it an of a was that their violation affirmative effect though occasional cases have so imate of the collision. cause referred proof not to it.33 The burden was was contest appellants’ general denial Rule; grounds it any the new remains the seven deny one of that affected negligence. by appellees stated above. was relied on denial, however, general a a par “Under in court and the trial Appellants’ position ty may introduce evidence of inferen negligence here not that is tially rebutting such argue facts affirma- as an been submitted should have presenting evidence jury facts such issue defense, rather that tive is op- demanding negative answer to view (in to be submitted required ponenfs submitting elements issues appellees’ as a evidence) part For his cause action defense.36 of example, appel- agree. believe case. We We can evi defendant offer supported by the decisions position lants’ is person’s dence a third conduct Hammer, by the discussion in Phoenix and of plaintiff’s the sole cause Hodges’ by the Christy, discussion argument injuries, in his authorities special issues and the work on may inquir the issue argue text state- support therein cited prox ing defendant’s holding the trial court ment. Our —that injuries imate should plaintiff’s cause of issue to failing erred to submit an be ‘no’ answered because the jury inquiring whether Polanco’s person’s third conduct shows roadway within the left and therefore was the cause negligence, intersection feet of the prox defendant’s could conduct since there was evidence of clear, quite is imate all. cause at violation —is however, nec special pleading fol- by a of cases supported also number essary to of an affirma the submission Hammer, Reu- some are: lowing of which issue, general denial will tive and that Gilbreath, (Tex.Civ. ter v. S.W.2d inferen not allow the submission of an Beaumont, 1966, e.); App., ref. n. r. wr. ” sup (Emphasis tial-rebuttal issue.37 Boyd, (Tex.Civ.App., v. S.W.2d Black plied) 1967, Hol- 1st, e.); wr. ref. r. Houston n. Collins, (Tex.Civ. land v. pleaded appellees In this case Amarillo, 1970, e.); App., n. r. wr. ref. particulars. pleaded Two of seven Stiles, Sears, Company 457 S. Roebuck grounds alleged violations of Section Waco, V.A.C.S., 6701d, wr. (Tex.Civ.App., (con- Art. but one them W.2d 580
271
orig-
ther
e.).
proximate
examined the
found that this was a
cause
ref. n. r.
We have
of
transcripts
question.
majority
v.
Refining
inal
in Phoenix
accident
The
Co.
Powell,
Ross,
this Court
held
supra,
supra,
Rash
have
that there
v.
Co.,
issues
fact
supra, and
raised
which
v. Dallas Transit
Hammer
any
justify
the violation
any specific pleadings
do
of the statute.
not find
Therefore,
reason,
they
the case must be
asserting
that the
viola-
them
reversed and
jus-
remanded for a new trial
tions therein involved were excused or
for the sole reason that
the trial court
tified.
require
did
plaintiffs
not also
submit
Appellants’
one is sustained.
prove
defendant,
that the
in violating
statutory duty,
negligent.
was also
appellants’ point
is ar
two it
Under
gued in substance that
of the fail
because
general
Texas courts
follow
rule
ure
trial
separate
court to submit a
that a violation
statutory duty
of a
result-
negligence concerning
issue of
Polanco’s
ing in an injury
the type
the statute
roadway
the left side of the
prevent,
sought
to one for
ad-
whose
in
when
within 100 feet
enacted,
vantage it
per
is negligence
se.
question,
present
tersection
that error is
This requires only finding
that the viola-
requiring
ed
reversal and rendition of
tion
was a
plain-
cause of the
judgment
agree
appellants.
in favor of
We
injuries,
tiffs’
to establish a defendant’s
judgment
be reversed but
must
liability or to
plaintiffs’
bar the
claim
concluded that the cause
be
should
may
the case
be. This rule is not inexora-
434,
remanded for new trial. Rule
T.R.C.P.
ble. Even
finding
with a
of negligence as
apparent
It is
the case was tried on
law,
findings may
matter
such
wrong theory,
necessary
that it is
that some
precluded if
there exists
a technical
matter
fact
(particularly
be ascertained
law,
violation of the
or under
circum-
negligent
whether Polanco was
on the oc
stances, an
excuse or
for the
question
reasonably
casion in
under the
proved
an
issue of fact.
prudent
standard),
justice
man
and that the
of the case demands another trial. See
early
case,
In
leading
Antonio
San
Praetorian Mutual Life
v.
Insurance Co.
Civil Appeals recognized
justi
Court of
Sherman,
(Tex.Sup.1970);
point edge Tynan on the east where the plead The defendant did not place. accident took or excuse for the He filed general at- denial. the defendant When The defendant truck driver was traveling tempted bring excuse, promptly up to it was east as he entered the He observed town. objected plaintiffs. trial No the Hall plaintiffs vehicle in which amendment during was offered the course riding. were Highway It entered 359 from of the trial. the south ahead of the truck. The Hall vehicle then Highway traveled east on Appellant says that these six reasons for 1031 feet to where north FM796 turns out, above set raise issue of fact of toward Beeville. The defendant truck driv- anyway, excuse and these excuse reasons er stated that Tynan traveling he entered or justify the violation of this statute. fifty to fifty-five per miles hour. He Therefore, says, appellant plaintiffs are slowed down to degree, pulled some out into required prove that the defendant’s act the left-hand lane and passing started of passing negli- at the intersection was Hall vehicle. The picked Hall vehicle had gence, using reasonably prudent man up speed some from the time it entered test. Highway it 359 until started its turn several untrue, These six reasons either blocks they east of where entered Highway they contributory plain- seek 359. When the defendant was within 20 excuse, they tiffs’ indirectly driver as an or 30 vehicle, feet of the rear of the Hall contemplated are not an excuse as is but over 100 feet back from the intersec- instance, law. For the fact there tion, he determined that the Hall vehicle yellow pavement was no line on the at the going to turn to applied the left. He passing, where defendant was no brakes, fifty slid some feet and struck violating particular this statute. the Hall vehicle on its left side causing says, except Defendant for the fact injuries and damages complained of. plaintiffs’ picked up speed, he could driver logical defendant’s passed. just excuses for violating have would be the law are portions plain- taken argue the defendant If of the evi- that: dence which he stopped deems most tiffs’ he have favorable to driver They him. are: (1) passed easily; That defendant had the Hall them car not speeded up as it entered had been his truck faster he could during quarter plaintiffs got of a he passed mile that it before Highway 359, traversed he pass- Again, the fact that could have intersection. ed the car before it reached intersection was forgot the intersec- defendant that this tion; (2) there, that there yellow was no his horn stripe or the fact he blew on the highway prohibiting he was pass- thought plaintiffs’ driver knew him from ing; (3) them, that it was pass dark and is no trees and excuse. why you get forc- then was it that didn’t back
There no truck blowout righthand A lane? Because I was ing the defendant into the left side up.” misleading already too far out for me to back highway. There center- pedestrian. He to miss line. didn’t swerve he The defendant driver admitted that says thought signs He signs. didn’t see the He that he admitted the inter- properly too small to observe supposed knew he at the was not section, yet professional driver he was question: intersection. He was asked the size Tynan and the at were the same signs “Q Now, prior you that time *13 that — signs all all the other similar over had known about to Market Road Farm photographic evi- state of Texas. The you? A hadn’t Not at that instant. dence, undisputed, is four which shows that, Q to A to Prior that time? Prior highway, one signs on south the side yes, Q that you sir. I think told me when indicating intersects where FM796 you pull Hall out on the saw the car south, signs as Highway the two 359 from forgotten Highway you just about for a short FM796 coincides with 359 up being there Farm to Market Road 796 east, sign distance and a fourth to left, your to that A is correct? That to north. Highway where it leaves Q whether regardless correct. And undisputably that photograph One shows any yellow stripe on or not was there not at all ob- night the intersection was you knew highway, at intersection away 100 feet scured over from supposed pass not within you were Another exhibit from intersection. intersection, a hundred feet of an didn’t question was shows that house feet, you? yes, A sir. Within hundred feet feet north that, Q I You that? A knew knew ac- FM796, place where west from just forgotten I about it too.” place. defendant Actually, cident took up time thought a new excuse each driver The defendant truck driver was asked he Hall why passed he why was asked he said he sign he didn’t see the he was at the intersection. Once concentrating watching vehicle was on Hall it that when he “Q Why “Q Well, you asked: was about vehicle. were worried you up Yes, were (Hall) picking speed, going. started A (Hall) where the car was him, going they not to be able Q you sir. And were worried you pull in behind Yes, might Q didn’t slow down A pull the left? sir. thought my thinking him A I you ? Because And about that before were worried mean, go straight, I they going to you passing? were A I worried—I was started turn they going to make no left I they going weren’t to turn after afraid was way they nothing on account was to Market signs seen on that Farm Well, righthand Q Oh, I A signs? off on side. Q you did see the Road. may- you thought worried about them feet from were hundred After I was within a Maybe maybe turning, left. A turning be it.” Now, that Q right. All
going straight. he asked whether Another time was true, any you reason that is there the law. violating not he knew was didn’t, they of, why you can think cross-examina- question put to him on you Now, picking up speed and when Q you you started knew weren’t tion : intersection, supposed passing in to be exactly they going were know what didn’t it then. you? A I recall didn’t didn’t get do, why you slow down and didn’t you Q Well, had known You didn’t? if A again? lane righthand back there; was remembered that intersection No, sir.” A Not you passed there? would no, it, feet from Well, hundred after I “Q if Another time he was asked: you knew at that time Q sir. away Because you two hundred feet were in the inter- passing be you shouldn’t picking up speed, and he intersection nothing fendant make section, A a hundred the violation right? Not within more than to be feet, no, sir.” Blades, jury. Christy considered why he was the reason He summarized supra. Christy In the case the stated signs: “A was worried watching not I are the existence there cases which I didn’t right off. they were to turn fairly of excuse or can to turn not made Market road remember about Farm to on jury’s as to conclusion whether My Q A right. there. All reasonably pru- negligent by actor was way they way main reason —the limited, dent man standard. This is how- Q paved shoulder. ever, statutory require- to cases where the course, you had re- All And right. accepted ments generally known and Market road the Farm to membered about care, as the standard and the minimum pass? you trying wouldn’t have been nature of the claimed excuse is such that A I think so.” don’t a technical will constitute ordinary prudence person if a *14 6701d, penal statute. is a Article Sec. would have violated the the statute under object Its It fixes the standard of care. same or similar circumstances. But this oc- prevent type is to the of accident Christy was not the in situation the case The question. curred on the occasion in nor in Christy the at bar. In case the case negli- to is failure to conform such standard the Court had under consideration Article gence “(a) per The states: se. statute 6701d, 86(d) which a Sec. was also “Thou any be driven to No vehicle shall time type shall not” of statute. roadway under the the left side of the following conditions: legislative body Where a acted to has done, declare what shall or be shall not
j|c
n
n
n
n
if:
the
longer
triers of
fact no
determine
2.
party
When
within one hundred
the
of
non-negligence
a
(100)
any
feet
or traversing
comparison
of
intersec-
of
with the
a rea-
conduct
tion
grade
sonably
man,
or railroad
crossing
prudent
but
or not
whether
expressed legislative
has
will
been
generally accepted
in
view
Texas
complied
If there has
a viola-
with.
been
is
elsewhere
violation of this
tion
legislative
will then
type
statutory duty
negli-
a
constitutes
is
not
as
comparison,
established
gence as a matter
This
of law.
is the
law,
a
proof
justifica-
matter of
absent
Leg-
reason
the violation of
what
720;
Negligence
tion. 45
65
C.J.
C.J.S.
islature
prescribed
pre-
has
as
suitable
a
19(3), 624.
§§
caution,
degree
is
to
failure
observe that
care
ordinarily prudent person
Co.,
which an
supra,
In Hammer Dallas Transit
Legislature
re-
Supreme
observe. When
stated that
the one
Court
gards
injure
violation,
certain
to
charged
acts
liable
so
with such a
justify
others
pro- may
their absolute
go
to
then
forward
with the evidence
hibition,
doing
of the forbidden act
show
excuse or
for the viola-
duty
is
respect
a breach
with
to those
justify
tion. But it
seeking
is the one
may
injured
who
thereby.
be
or excuse the
who has the burden
violation
C.J.S.
Negligence
19(3).
a
violation
When
forward with the evidence. For
§
“ * * *
6701d,
instance,
Article
Sec.
has been estab-
said
Court
findings
lished by
similar
those in this
upon
burden the defendant Transit to
case,
proper
ordinary
it is
go
not
to submit
prove
forward
not
with
evidence to
negligence to determine
the truck merely
whether
its
loss of
hut that
own
control
care,
ordinary
driver exercised
absent
the loss
excusableAgain
control was
pleadings
proof
justification.
in
This
Hammer
Court said
Phoenix
“ * * *
urged by
method of
being
submission
the de-
proved
He
an excuse
* *
Actions,
gence
Review
Columbia Law
wrong
road
side
Action,
21;
Court,
Private
Wrong
Public
distin-
(emphasis supplied). The
317; Sufficiency of
Law
Tolbert case Harvard
Review
Dallas Transit v.
guishing the
Jury Question, Texas
ref.
(337
Tex.Civ.App.1960,
Excuse Warrant
“ * * *
n our
said;
866;
Law
opinion
Review
Violation
Statute—
e.)
n. r.
424;
Violation, 25 Tex.Law Review
support
Excuse
Tolbert
not
Transit’s conten-
does
tion,
There
case,
Tex.Jur.2d, Negligence,
Sec.
charged
the one
because in that
are cases that hold that
road
wrong
side
may
emergency
in an
acting
while
proved
excusably
that his vehicle was
”***
justified,
to avoid a hazard
order
(emphasis supplied)
of control.
long
as such violation
danger,
serious
so
say
Supreme
Court
on to
went
own
product
the maker’s
justification,
proves
when he
excuse or
977, see
negligence. 34 Texas Law Review
then
party
thrusts
the other
14 and 15.
footnotes
burden
finding
obtain
viola-
In our case the defendant entered
was negligent
tion
act under the common-
voluntarily.
road
left-hand
Supreme
law standard.
attempt
his own decision
Christy,
quoting
after
the above rules from
forget-
his
It was
own
said,
Hall vehicle.
legal
case
Hammer
not to remember
that caused him
fulness
violation is established
question.
It was
intersection
as a matter
law or
aby
admission,
carelessness, by
own
his own
then
will need
*15
of fact
him
fail
observe
caused
negligence.
a
finding of common-law
It
his own volition
intersection.
no
the case before us there was
excuse
pursue
passing
the Hall vehicle
established as a matter
law nor was
mind
even after he determined
his own
request,
nor
there a
there
that he was not sure what
vehicle
justifying
of fact
has
the violation.
6701d,
Art.
purpose
do.
going to
Christy
that the
case
been said
v. Blades
driving on the
prohibit the
Sec.
is to
changed
party attempt-
the burden
excuse,
wrong side of the road when
ing to establish the defense of
persons
protect
all
intersection.
It is to
producing
a burden of
to a
bur-
inter-
near the
using
at or
den of persuasion.
Law
See 49 Texas
they
section,
way
Review,
regardless of which
pp. 175-180.
Hernandez, 394
traveling.
Martinez v.
theory
defendant’s
in our case was
Antonio
(Tex.Civ.App.-San
S.W.2d 667
plaintiffs,
prove
had to
Mathis,
e.);
ref. n.
Harbert
wr.
r.
statutory violation
and that such act
(Tex.Civ.App.-Eastland