Akers v. Epperson , 172 S.W.2d 512 ( 1942 )

MURRAY, Justice.

This suit was instituted by Roy Akers against Mrs. R. J. Epperson and her husband, R. J. Epperson, seeking to recover the sum of $1,000 as damages alleged to have been sustained when an ambulance owned by Akers and a Dodge passenger car operated by Mrs. Epperson collided in the City of San Antonio, near the intersection of San Pedro and Park Avenues.

The trial was to a jury who found by their verdict that Mrs. Epperson was guilty of negligence, which was a proximate cause of the collision, and, likewise, that J. P. Riley, operator of the ambulance, was guilty of negligence, which was a proximate cause of the collision. Upon this special issue verdict the trial court entered judgment denying Akers any recovery, from which judgment he has prosecuted this appeal.

Appellant’s first nine points present the contention that there was either no evidence or insufficient evidence to support the finding of the jury to the effect that the ambulance was being operated at a negligent rate of speed, and that such negligence' was a proximate cause of the collision. We are of the opinion that the evidence is sufficient to support both the finding as to negligent and unlawful rate of speed and as to proximate cause. Riley, the operator of the ambulance, testified that he was traveling at a rate of speed from twenty to twenty-five miles per hour. There was also evidence that the ambulance, in coming to a stop, made skid marks on the pavement twenty-six to twenty-eight feet long. It was a warm day; the pavement was dry. Skid marks made by a motor vehicle in coming to a stop are evidence of the speed the vehicle was traveling at the time. Blashfield’s Cyclopedia of Automobile Law and Practice, Perm.Ed., vol. 9, part 2, § 6233; Stamper v. Scholtz, Tex.Civ.App., 29 S.W.2d 883; Meissner v. Papas, 7 Cir., 124 F.2d 720.

Whether or not the negligent rate of speed was a proximate cause of the collision was a question of fact for the jury under all the circumstances. Appellant contends that in view of the fact that Mrs. Epperson suddenly lost control of her car, causing it to turn to the wrong side of the road in front of the on-coming ambulance, and then recovered enough to turn the car almost head on into the ambulance, all of which was unforeseen by the driver of the ambulance, and, therefore, the speed of the ambulance could not have been a proximate cause- of the collision. It was the duty of the jury to weigh all the surrounding facts and circumstances, and, having done so, and arrived at the conclusion that the speed of the ambulance was a proximate cause of the collision, we are bound by their verdict. 38 American Jurisprudence p. 1056, § 351.

It is not required that the driver of the ambulance should have foreseen that this particular accident would happen in the exact manner that it did happen. All that is required is “that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might rea: sonably have been foreseen.” Missouri-Kansas-Texas R. Co. v. McLain, 133 Tex. 484, 126 S.W.2d 474, 476; Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847.

Appellant next contends there was jury misconduct,- in that the juror Boswell gave to the jury his opinion that from the skid marks on the pavement the ambulance was going forty miles per hour. Boswell had previously told the jury he was in the filling station and garage business. He had stated that he had been on a great many juries but never one like the case at bar. It is contended that, due to his previous experience as a juror and as a garage man, his opinion was accepted by the jury as that of an expert upon the subject. No doubt each member of the jury had had a great deal of experience starting, driving and stopping automobiles. The jury was entitled to discuss the evidence and express their opinions of the same. There was nothing improper in Boswell giving his opinion of the evidence properly before the jury, and in stating to his fellow jurors his conclusions from the evidence. Jurors naturally weigh the evidence in the light of their experiences in life and their common knowledge. Blue Diamond Motor Bus Co. v. Hale, Tex.Civ.App., 69 S.W.2d 228.

Neither was there jury misconduct in the Juror C. O. Mattfeldt visiting the scene of the accident during the course of the trial. It seems from the evidence that Mattfeldt had traveled San Pedro Avenue for some seven years, and the intersection of Park Avenue and San Ped-. ro Avenue did not look any different on the occasion that he visited it during the trial than it did on the many other occasions that he had passed it. The collision occurred some time before th® trial and there was no evidence of the wreck on the pavement at the time of the trial. The record doesn’t show that Mattfeldt saw anything on the occasion complained of, that he had not seen many times before he was accepted as a juror on the case. No injury to appellant is shown. New Court Rule No. 327.

Appellant next complains that the finding of the jury in answer to Special Issue No. 37, to the effect that Riley did not fail to have the ambulance under proper' control just prior to and at the time ■of the collision conflicts with and destroys the finding of the jury in answer to Special Issues Nos. 32 and 34a to the effect that the speed of the ambulance just before the collison was a proximate cause of the collision. We overrule this contention. The decisions are clearly against appellant’s contentions. Smith v. Young, Tex.Civ.App., 147 S.W.2d 859; Manlove v. Lavelle, Tex.Civ.App., 235 S.W. 324; Austin v. De George, Tex.Civ.App., 55 S.W.2d 585. Northeast Texas Motor Lines v. Hodges, Tex.Com.App., 158 S.W.2d 487, is not in conflict with the authorities above cited.

Appellees’ counter-point is without merit and is overruled.

The judgment is affirmed.