The action was to recover damages for personal injuries resulting from a highway collision between appellant's gasoline transport truck and appellee's Willys sedan, in which the latter was an occupant but not driving. Plaintiff below alleged specific acts of negligence on part of defendant's *Page 989 driver proximately causing the collision; the truck owner defending upon ground of release executed by plaintiff; alternatively pleading contributory negligence of plaintiff and driver of his car (a soldier companion) directly resulting in the injuries complained of. Upon jury trial and answers on special issues with verdict of $15,000, judgment was rendered in such amount, less credit of $70.50 theretofore paid for release of claim; defendant prosecuting a timely appeal.
On the afternoon of May 19, 1945, at Cameron, plaintiff Talbott, aged 48, had struck up an acquaintance with a soldier (Mikolajczak) who remarked that he would like to see more of Texas. Then followed the automobile ride to Brenham, the soldier driving and agreeing to pay gasoline expenses if he could visit some friends there. The collision occurred on their return trip along Highway 36 about 11:00 o'clock that night, some six miles south of Caldwell, Burleson County, when defendant's transport truck struck them from behind, the car being knocked off the roadway and landing upside down. According to the soldier, who was still driving, with plaintiff riding on front seat, they were traveling on right side of road, speed 30 miles per hour, the collision coming suddenly and without warning. On the other hand, defendant's truck driver testified that he was traveling 30 to 40 miles per hour prior to the collision, saw no tail lights on any car ahead, and did not actually see plaintiff's vehicle until within 40 to 50 feet; that it was either stopped or traveling no more than two miles per hour at the time; that if plaintiff's car had been moving as much as five miles per hour he could have missed it; using all means at hand after discovering the car in front to avoid a collision. The jury found affirmatively on the subsidiary issues of negligence and proximate cause in connection with plaintiff's primary issues, viz.: (1) That James T. Burt (defendant's driver) failed to keep a proper lookout for plaintiff's car; (2) that Burt was driving his truck at a high and dangerous rate of speed at the time; (3) that just prior to the collision operator Burt drove his car too close to plaintiff's car before commencing the application of his brakes; (4) the truck was being operated as such time in excess of 45 miles per hour. Findings were in plaintiff's favor on all issues charging contributory negligence, viz.: (1) That the soldier driving plaintiff's car did not fail to keep a proper lookout for vehicles on the highway; (2) the Talbott car was not stopped just prior to the collision; (3) and was not being driven without a lighted tail light exhibiting one red light plainly visible for a distance of 500 feet to the rear; (4) just prior to the collision the soldier was driving the Talbott car at rate of 15 miles per hour; (5) plaintiff's car was not parked on the highway on the occasion in question. The jury also found that the collision was not due to an unavoidable accident; in favor of defendant on issues 31 to 34 involving discovered peril and that on May 22, 1945, when executing release of claim, plaintiff was not in possession of sufficient mental capacity.
Appellant's first point of error complains of the court's refusal of his requested issue No. 2, reading: "(a) Do you find from a preponderance of the evidence that at the time and on the occasion complained of Jesse J. Talbott failed to keep a proper lookout for his own safety?" "(b) Do you find from a preponderance of the evidence that such failure on the part of Jesse J. Talbott in failing to keep a proper lookout, if you have so found, was negligence as that term has been hereinbefore defined to you?" "(c) Do you find from a preponderance of the evidence that such negligence, if any, proximately caused or proximately contributed to cause the accident in question?" Defendant had pled that at time of the collision, plaintiff's car was being operated by his agent (the soldier) and that each occupant of the car was guilty of negligence proximately causing the accident in failing to keep a proper lookout. We conclude upon careful study of the record that the tendered issues should have been given. The defense had proceed on the theory (not objected to) that the soldier's method of driving the car (whether negligent or not) was imputable to plaintiff; in other words, that the former was acting for and on behalf of plaintiff in its operation. Also there is no *Page 990 hint of testimony that plaintiff had yielded to his companion, the soldier, a right of possession or control of the manner in which the car was being driven. It appears to us that in either of the situations just mentioned plaintiff would be bound to exercise the same degree of care in the matter of lookout as that required of the driver. Anderson v. Texas N. O. Ry. Co., Tex. Civ. App. 63 S.W.2d 1079; Rigdon v. Crosby,328 Ill. App. 399, 66 N.E.2d 190. But the point need not be argued. Even as a passenger or guest, the issue of proper lookout, applicable to plaintiff, was fully presented under the facts and circumstances of this record. 42 C.J., p. 1169; 5 Am.Jur., p. 769; Texas Mexican Ry. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Toney v. Herman Hale Lbr. Co., Tex. Civ. App.36 S.W.2d 234; Whistler v. Freeman, Tex. Civ. App. 62 S.W.2d 674; Anderson v. Texas N. O. Ry. Co., supra: "The rule is followed in a large majority of the states that, `while the negligence of the operator of automobile is not chargeable to a passenger, still a passenger is bound to exercise such care for his own safety as the exigencies of the situation require. It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and to avoid it if practicable.' Berry, Automobiles, § 571, and cases cited, several of which are Texas cases. Negligence of the guest or passenger is a question of fact to be determined by the jury. Texas City Terminal Co. v. Showalter, Tex. Civ. App. 257 S.W. 621; Davis v. Pettitt, Tex.Com.App., 258 S.W. 1046. The last decision cited is by the Commission of Appeals, and it was in terms approved by the Supreme Court `on the question discussed in its opinion.'" Boltinghouse v. Thompson, Tex. Civ. App.12 S.W.2d 253, 255. Citing Valley Film Service v. Cruz, Tex. Civ. App.173 S.W.2d 952, and Le Sage v. Smith, Tex. Civ. App. 145 S.W.2d 308, 315, appellee says that it is only when the motorist ahead slows down his vehicle, intending to stop or change his course, that it is his duty to keep a lookout to the rear for oncoming cars; being essentially the issue presented here in the testimony of defendant's truck driver to the effect that he overran plaintiff's car because it had either stopped or was barely moving along the highway. "Our idea of a proper lookout (says the court in Le Sage v. Smith, supra) incumbent upon the operators of motor vehicles upon highways, is one that concerns vehicles in front of the party to be held to such rule, and not those approaching from behind, unless there appears some particular fact that calls the attention of the driver of the front car to the car that follows, which would impose some duty upon the driver of the front car to maintain such a lookout, or unless the driver of such car either slows down his vehicle or intendsto stop the same, under which circumstances, or either of them, it wouldbe the driver's duty to keep a proper lookout for vehicles following suchcar * * *." (Italics ours.)
But plaintiff urges that all jury findings on this issue negative the existence of any condition that "would make it the duty of plaintiff or the driver of plaintiff's automobile to keep a lookout for any vehicle approaching from their rear." "We have repeatedly held (says the Commission of Appeals) that the fact that the findings of a jury upon a plaintiff's issues may negative the existence of a defensive special plea is no excuse for refusing to submit such issue when the same is raised by the evidence. * * * If a defendant pleads a special defense, and there is evidence in the record supporting such plea, he is entitled to have the same affirmatively submitted for the determination of the jury, and this regardless of whether the findings subsequently made upon plaintiff's issues may negative the existence of such defense. Northern Texas Traction Co. v. Woodall, Tex.Com.App., 299 S.W. 220; Montrief Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276." Davis v. Estes, Tex.Com.App., 44 S.W.2d 952, 955.
In view of a retrial, the remaining points of error will be given no more than a brief discussion. One: The court did not err in overruling defendant's requested issues involving plaintiff's alleged state of intoxication at time of injury. "The question of appellant's intoxication was not an ultimate fact issue and it was not necessary that it be submitted to the jury as an issue. *Page 991 The trial court's action in not so submitting it was correct. Appellant's intoxication was a fact to be considered by the jury, together with other circumstances, in answering the third special issue in the trial court's charge, which in our opinion sufficiently and correctly submitted the question as to appellant's heedless and reckless disregard, or conscious indifference." "That he (plaintiff's husband) was under the influence of intoxicants would be a fact that the jury had a right to take into consideration in determining whether he was guilty of contributory negligence or not, but it would not of itself convict deceased of such negligence." St. Louis, S. F. T. Ry. Co. v. Morgan, Tex. Civ. App.220 S.W. 281, 282; Hicks v. Frost, Tex. Civ. App. 195 S.W.2d 606; (N.R.E.).
Second: Under the instant facts the court's instruction relative to issue 35 (unavoidable accident) was correct; charging, as it did, that the term meant an occurrence happening "without negligence on the part of James T. Burt, the soldier in question, or Jesse J. Talbott." (Italics ours.) Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938. Defendant has gone to the jury on the doctrine of principal and agent; in other words, that negligence of the soldier driving the car was imputable to plaintiff. Hence counsel is in no position to urge that the inquiry on unavoidable accident should be limited to plaintiff and defendant; or object to the instruction on the ground that negligence of the soldier (the agent of plaintiff) "is not at all involved."
Third: We need not discuss the charge of plaintiff's injection of defendant's insurance coverage into the case, as the incident may not re-occur. However, the answer of defendant's witness Yates on cross-examination, using the words "insurance company," was in no sense responsive to any question and could not have been anticipated by plaintiff's counsel; making applicable the rule that "reversible error was not shown because a witness offered by defendants in action for injuries in automobile collision make a reference to defendants' insurance while being cross-examined, when such reference was made suddenly and inadvertently by witness and plaintiff's counsel was without fault in the matter." Texas Textile Mills v. Gregory, 142 Tex. 308,177 S.W.2d 938, Syl. 3.
Fourth: The testimony of soldier Mikolajczak was in form of written deposition from which the court admitted the following: "Q. Did anything happen to the car in which you were riding about six miles before you reached the town of Caldwell, Texas, and if so, describe in detail just what happened to the car to the best of your knowledge? A. Yes, we were knocked off the road by a big gas truck which was tearing past us. I was close to the edge of the road and he passed with no warning horn. There were no bright lights to warn me and the next thing I knew we were knocked off the road, turned over. The truck was going in the same direction I was and was going about 70 miles an hour." Defendant objected to the italicized part of such answer as not responsive, the witness not being further shown as qualified. We think the soldier's qualification to judge the speed of defendant's truck was sufficiently established in both direct and cross-examination. However, this part of the answer was in no sense responsive; defendant being thereby deprived of any opportunity of cross-examination on the highly controverted issue of speed.
Appellant made vigorous objection to the testimony of plaintiff's brother, J. L. Talbott, descriptive of what he termed the scene of the collision as viewed June 5 or 12 thereafter; his narrative taking in certain skid-marks on the pavement, deep ruts off the righthand shoulder of the highway, ending in a pile of banked up dirt; also a spot where "it looked like a car had been turned over," oil on ground, also pieces of seat packing and floor linoleum. All the matters complained of were but in substantial corroboration of testimony of Burt, the truck driver, and Sheriff Bates, defendant's witnesses, relating to conditions on the ground at time of the wreck. The evidence was relevant and admissible as against the contention of no showing that conditions were the same as on night *Page 992 of collision, and that the record affirmatively indicated changed conditions due to time and traffic.
However, because of error hereinbefore indicated, the cause must be reversed and remanded for another trial. On Motion for Rehearing.Rehearing denied.