Gray v. Hartman

GRIFFIN, J. This is an action by Delia Gray, as administratrix, on behalf of herself and adnlt heirs, for damages for the death of Berry Gray, her husband. A jury trial was waived.

On December 23, 1943, at 7 p. m. Berry Gray was walking in a southerly direction upon the easterly edge of an 18-foot oiled surface highway near Farmersville. There was no white line indicating the center of the road. The shoulders of the road were “grassy.” Defendant Harold Eugene Hartman was driving a flat-rack truck, seven feet in width, owned by his father, H. S. Hartman, in a northerly direction upon the east one-half of said road. The truck collided with Berry Gray and as a result thereof, he was killed.

The court found that it was not true, as alleged, that the collision or the death of Gray was caused by any negligence whatsoever on the part of defendant Harold Eugene Hartman, and specifically found that Gray was himself negligent in the manner in which he conducted himself in walking upon the edge of the highway at the time, and that his death was the proximate result of his own negligence.

Plaintiff appealed and now argues' that the evidence is insufficient to justify the findings and judgment.

Harold Eugene Hartman testified that he was driving the truck north on the oiled road; that there was a light fog; that his lights were on high beam; that just before the accident he saw lights from an approaching car several hundred feet down the road; that he was then traveling about 20 to 25 miles per hour; that as the other car approached he noticed that its headlights were glaring; that he dimmed his lights; that the oncoming car seemed to be crowding the center of the road; that he pulled over slightly to his right to give room for safe passing; that instantly, after he passed him, he put his lights back on high beam; that practically at the same instant he felt an impact and his wife screamed and said: ‘‘ Oh, you hit a man ’ ’; that he stopped immediately, backed up about 50 feet until he saw the body of a man lying by the side of the road in the grass about 3 or 4 feet east of the oiled pavement; that he did not see what he struck although he could see down the road as far as his headlights penetrated (probably 100 feet); that he did not have his windshield wiper working as there was no need for it; that the glare of the approaching headlights started to blind him at a distance of about 50 or 75 feet; that the place of impact [403]with. Mr. Gray was on the right front corner of the truck bed and headboard. The truck had dual wheels and the bed extended beyond them a few inches. He testified that he did not believe that his wheels left the main traveled portion of the highway.