472 S.W.2d 582 | Tex. App. | 1971
This is a venue case. Plaintiffs, Jerry Anderson and husband, William Anderson,
Defendant insurance company filed a plea of privilege to be sued in Dallas County, the county of its alleged residence. Plaintiffs duly filed a controverting affidavit alleging that venue was properly laid in Rusk County because defendant is a private corporation and the cause of action arose in Rusk County.
After a hearing the trial court overruled the defendant’s plea of privilege and this appeal resulted. We affirm the ruling of the trial court.
Defendant urges that the trial court erred in overruling its plea of privilege because there is no evidence of any negligence on the part of the uninsured motorist, or that his conduct proximately caused the accident. Defendant also urges that the judgment is contrary to the great weight and preponderance of the evidence as to negligence and proximate cause on the part of the uninsured motorist.
Our venue statute, Article 1995, Vernon’s Annotated Texas Statutes, provides that no person may be sued outside the county of his domicile except in certain enumerated instances. While plaintiffs’ controverting plea does not set forth the number of the subsection of the statute relied upon to sustain venue in Rusk County, it is apparent from the controverting plea that they are relying upon subdivision 23, which reads in part as follows:
“23. Corporations and associations.
Suits against a private corporation * * * may be brought * * * in the county in which the cause of action or part thereof arose; * * * ”
Under such subdivision, plaintiffs had the burden of proving that the uninsured motorist was negligent upon the occasion in question and that such negligence was a proximate cause of the damages sustained by them. Continental Casualty Company v. Thomas, 458 S.W.2d 863 (Tex.Civ.App., Amarillo, 1970, n. w. h.).
It is without dispute that plaintiffs had in force and effect a policy of insurance issued by defendant insurance corporation providing for uninsured motorist protection; that Charles Largent was an uninsured motorist; that the plaintiffs sustained injuries; and that the collision occurred in Rusk County, the county of suit. The only remaining question therefore is whether or not plaintiffs discharged their burden of establishing negligence and proximate cause.
The collision occurred on Highway 42 near the city of Turnertown at approximately 4:30 p. m. It is without dispute that Largent’s vehicle was stopped in the lane of traffic traveled by Mrs. Anderson. Largent testified that he was stopped
The plea was heard without a jury and no findings of fact or conclusions of law appear in the record. The trial court’s judgment, therefore, implies all necessary fact findings in support of the judgment. In determining whether the evidence supports the judgment we are required to consider only that evidence most favorable to the judgment and disregard entirely that which is to the contrary. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609.
Viewed in this light, the question is whether or not, under the existing circumstances, the stopping of the unlighted automobile upon the highway without warning that it was stopped constituted negligence proximately causing the collision.
Plaintiffs do not contend that Largent stopped suddenly. Nor do they contend that he violated any statute in stopping upon the highway or in failing to warn that his automobile was stopped. Rather, they argue that because of the poor visibility Largent had a common-law duty to warn the oncoming traffic that he was stopped and that he breached such duty in failing to warn. Defendant takes the position that Largent owed no duty because he had a right to stop his automobile preparatory to making a left turn and having such right, had no duty to warn that he was stopped.
It may be conceded that Largent was not guilty of negligence in stopping his automobile upon the highway prior to making a left turn. But even so, we still have the question of whether he owed a duty to warn that he was stopped. In this connection, we are of the opinion that Lar-gent had a common-law duty to warn other motorists that he was stopped, if an ordinary prudent person, in the exercise of ordinary care, would have anticipated and foreseen that, in the absence of such warning, a collision might occur. Rodgerson v. LaFollette, 424 S.W.2d 280 (Tex.Civ.App., Houston, 14th Dist., 1968, err. ref., n. r. e.) ; Shepard v. Ray, 432 S.W.2d 178 (Tex.Civ.App., Dallas, 1968, n. w. h.); and Blashfield Automobile Law and Practice, Vol. 3, sec. 116.4.
Under the facts and circumstances presented here, we believe there was at least some evidence of probative force from which the trier of the fact could have found that a person of ordinary prudence in Largent’s position would have, in the exercise of ordinary care, either had his lights on or would have given some type signal that he was stopped. He knew it was raining and the visibility was poor. He also knew, or should have known, that the oncoming traffic to his rear could not be expected to anticipate finding a dark colored, unlighted automobile stopped in the main traveled portion of the highway. Therefore, as we view the evidence, it is not unreasonable to infer that Largent was negligent in failing to give some warning that he was stopped.
After an examination of all the evidence, both that in favor of and against the judgment, we cannot agree with the proposition that the judgment is against the overwhelming weight and preponderance of the evidence.
Affirmed.