I have acquiesced in the respective judgments remanding this cause and overruling the appellee's motion for rehearing, but on neither occasion in the reasons for that action as expressed in the court's original opinion; while I think appellee's own speed did then so appear to have been faster than 15 miles per hour, I cannot affirm the undisputed evidence to also show that he was at the time of the collision engaged at all in passing another automobile going in the opposite direction; and, if it did not, of course the violation or Penal Code, art. 794, was not shown as a matter of law.
This statute, being a penal one, should be as strictly construed in appellee's favor as against him, and its plain terms only denounce as an offense the actual passing of such another car without slowing down to 15 miles per hour.
The only car pointed to by any specific evidence — other, possibly, than the statements quoted in the court's former opinion herein from the appellee himself — as having been thus approaching his at the time of the collision, was the Clark car; indeed, appellant did not contend otherwise under its fourth proposition making this claim, insisting that the undisputed proof did show that he was then passing the Clark car. True it further suggested in argument, "It is possible that the Clark car was in fact passing the truck just as Belser struck it, and that another car passed him `just' before the crash," but, as *Page 412 stated, no evidence was cited indicating the presence at the moment of a third car, unless it be the appellee's general statements this court relied upon. He negatived that inference, however, by other testimony, not quoted, to this effect: "Just immediately prior to the accident two cars passed me going in the opposite direction; in other words, they were going from Houston and I was coming toward Houston. That happened just before I struck the truck. We would have passed the third car if I hadn't hit the truck; I hit the truck and it went by, and our lights were probably together, something near that, at the time of the accident. Two cars had passed me at that time, and I would say that by the time I hit the truck they would have been a quarter of a mile on east, or west, whichever it might be, from me. Those two cars were in ordinary driving distance from each other — probably two hundred feet between them, and I would judge that the first one would prabably be eight hundred or a thousand feet, which is in the neighborhood of a quarter of a mile, from the scene of the accident. I would think there was about two hundred feet space between each of those three cars, and they all had lights on them, and I had lights."
On the same point the witness Toney, who was riding with him at the time, testified, "1 do not think that we were in the act of passing a car at the time this accident happened"; while as affecting the contemporaneous position of her car, Mrs. Clark said: "I don't think that we had passed the truck when the crash took place, but I think we heard the crash as we got to the truck, and we were just about even with the truck when we heard the crash. Just as we approached the truck I imagine we heard the crash. We had not passed the truck when the collision took place. I think we were just by the side of it, just getting to it, when we heard the crash and we stopped as soon as we could, and got out."
So that, upon the whole, it seems to me an issue of fact was raised as to whether the appellee was actually engaged in passing another car at the time of the collision within the meaning of article 794, supra, wherefore the learned trial court would not have been at liberty to peremptorily charge the jury to the contrary.
But while so holding, I further conclude — taking and appraising all the evidence, both direct and circumstantial, inclusive of what seems to me the disputably established speed on appellee's part of more than 15 miles per hour at and for about a mile before reaching the place of impact, as well as his own first admission that he was then passing another car — that the jury's finding under special issue No. 11 was against the weight of the evidence to the extent that it should not be permitted to stand; appellant's fifth proposition and underlying assignment raised this protest, which in my opinion should have been sustained, rather than the one that was upheld.
While its outlines are often difficult of practical demarkation, the judge-made law of Texas has created such a twilight zone as there being in a given case enough evidence to raise an issue of fact for a jury, and yet not enough in the exercise of the court's conscience to properly support a verdict thereon. This cause seems to me to present an example of that sort.