Scott v. McElroy

POPE, Justice.

Charles W. Scott, Sr., plaintiff below, has appealed from a judgment upon a verdict which found that his nineteen-year-old son, Charles W. Scott, Jr., was contributor-ily negligent in an automobile collision by failing to keep a look-out, which negligence was a cause of the accident. Scott urges that (1) the findings about lookout have no support in the evidence, (2) are against the great weight of the evidence, and (3) the trial court improperly admitted evidence concerning the son’s record and conduct as a student. We affirm the judgment.

Scott, with two friends, was driving north along Interstate Highway 35, on the night of November 13, 1960, in the vicinity of New Braunfels. The highway had two double lanes, one for northbound traffic and the other for southbound traffic. An esplanade separated the two lines of traffic. Scott was followed by a 1960 Ford, driven by Paul Schoenfield who also had two passengers. The six companions were returning to Houston after spending the week-end at a camp in Kerrville. A short time before the accident, and while on a feeder road, Scott stopped and inspected his car for trouble. He then drove onto the freeway. He was again followed by Schoenfield. Several hundred feet behind Schoenfield, McElroy was driving northbound. No other vehicles were involved or present before the accident, either northbound or southbound. Scott decided to again inspect his car, so he flashed his lights about five times and began to slow down gradually. As he slowed down, Schoenfield maintained an interval of about one hundred feet between his car and Scott’s forward car. Schoenfield pulled to the right-hand paved shoulder and came to a stop. Scott saw Schoenfield through his rear-view mirror when he pulled to the shoulder, but Scott continued slowly down the highway. McElroy was the third car in the line of traffic, and he was about five hundred feet back of Schoenfield at the time Schoenfield stopped. He passed Schoenfield’s Ford and drove into the rear of the Scott car. Both cars were demolished.

There was evidence which supports the findings that Scott “failed to keep such a lookout as a person of ordinary prudence in the exercise of ordinary care, would have kept under the same or similar circumstances,” and that this was a proximate cause of the accident. The essence of Scott’s argument of “no evidence” is his contention that he supplied all the testimony and McElroy did not testify. The fallacy of the contention, however, is found in the fact that Scott, in supplying all the evidence, supplied a considerable amount whicn *434supported the jury’s finding of his o,wn negligence, and his friends corroborated it. We shall review some of those facts. All three drivers were, and knew that they were on a freeway. A freeway is a highway with controlled access which is intended for the elimination of most traffic stops, intersections, and other interferences with the flow of through traffic. Art. 1085a, Vernon’s Tex.Civ.Stats. Before Scott decided to make the second investigation of his automobile, all three vehicles were moving at what was described as normal highway speed. Scott, the lead driver, then began to slow down. Schoenfield also slowed down, maintaining about the same distance between the two cars. Scott testified that he flashed his brake lights, and Schoenfield said he saw them. Schoenfield’s car was between Scott’s and McElroy’s cars, and McElroy may or may not have seen the flashing lights. Schoenfield moved to the shoulder and stopped, but Scott, while continuing to slow down, stayed on the traveled part of the highway.

The point of impact was near the middle of the highway. An officer of the State Highway Patrol testified that the highway was forty feet wide with a center stripe. Scott’s vehicle was struck on the left rear by the McElroy vehicle’s right front light. He testified that the skid marks and debris fixed the point of impact in the right-hand lane about two feet to the right of the center stripe. This means that Scott, though coasting along slowly, remained well out in the line of traffic instead of pulling to the right or moving onto the paved shoulder which was available.

Scott testified about his own lookout. He looked in his rear-view mirror and saw Schoenfield pull to the shoulder. He said that he saw the lights of the McElroy car when it was 100 or 150 feet behind him. While this is testimony that Scott saw Mc-Elroy, this is the evidence which the jury in all probability decided was not a proper lookout. Schoenfield testified that he was 100 feet behind Scott, and that when he stopped, he looked and saw McElroy 500 feet farther back. ' The road was straight and “flat like a wide-open prairie.” Lights were visible for great distances. • The jury well could have concluded that Scott was watching his companion’s car, but was oblivious to and indifferent about other overtaking traffic. Although Schoenfield saw McElroy 500 feet away, Scott said that he did not see him until he was 100 or 150 feet away.' Scott was asked the direct question, whether he saw the McElroy car when he looked to see Schoenfield, who had stopped. He answered, “No.” He was asked what he saw when he looked back, and he said he saw Schoenfield. He was asked, “And you saw no other car ? ” He again answered “No, sir.” Scott therefore testified that he did not see the lights of the McElroy car until they were 100 or 150 feet away, though there was nothing between the Scott car and the McElroy car. The lights were there, and when Scott finally looked back for overtaking traffic it was too late for him to do anything about his situation.

This is a case of one who is moving along a freeway at night at highway speed and then slows down until he creeps along, as Scott himself testified, at a speed of five to ten miles an hour. This is not a case in which the lead driver slowed down or stopped because his travel was impeded by traffic, LeSage v. Smith, Tex.Civ.App., 145 S.W.2d 308; nor is it one in which the driver stopped in obedience to traffic signals or traffic controls. Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435; Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229. A lookout to the rear is not required in those cases, but LeSage v. Smith, supra, states the exception to that general rule. When one in a stream of traffic slows his vehicle, or stops it, or changes his course, a duty arises to see what is behind when he makes the change. Certainly that is the sound rule for speeding traffic along a freeway at night when speed and distance are more difficult to judge. Beasley v. Baker, Tex.Civ.App., 333 S.W.2d 212; Manning v. Block, Tex.Civ.App., 322 S.W.2d 651; Womacks v. Horne, Tex.Civ.App., 300 S.W.*4352d 765; 60 C.J.S. Motor Vehicles 1 90, p. 301. The authorities are collected and reasons for the rule are -well stated in Mr. Chief Justice Murray’s recent opinion, Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116.

There was evidence which supports the verdict. Applying the test stated by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and by looking at all the evidence, we can not say that the findings are so against the great weight of the evidence as to be manifestly unjust.

Scott’s final point is that the court improperly admitted evidence about his son’s behavior and record as a student and young man. Those matters were brought into the case by Scott, first by pleading and then by testimony. In any event, they did not affect the crucial findings about Scott’s lookout.

The judgment is affirmed.