3 5 3 bell v fore 419 sw2d 686 tex civ app texarkana

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3 5 3 Bell v. Fore, 419 S.W.2d 686 (Tex. Civ. App. Texarkana 1967), af’d sub nom. Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968). 4 5 4 434 S.W.2d at 118-19. 254
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to the injuries suffered by the rescuers. These were the only questions of causation involved in the case. [56] Whether the injuries and deaths of the rescuers caused by the defendants in the opera- tion of their vehicles were risks within the scope of their duties owed the rescuers was an issue of law for the trial judge, and later the judges of the appellate courts. If found favorably to the de- fendants, they were entitled to a directed verdict. If found favorably to the plaintiffs, or if the trial judge was in doubt and the evidence would support an inference of negligence, the court should have submitted the following issues to the jury: (a) Do you find from a preponderance of the evidence that Mrs. Campbell was negligent in the operation of her truck so that it came into collision with the automobile of Marshall and over- turned his trailer as an obstruction in the highway? Yes ___ No ___ Instruction: Before you can answer the foregoing question “Yes” you must find that Mrs. Campbell was an ordinary prudent person, under all the circumstances that conditioned her opera- tion of the truck, should have reasonably foreseen some such risks of collision with Marshall’s au- tomobile and the overturning of his trailer as an obstruction of the highway, and you must further find that she failed to exercise ordinary care to avoid such risks. If you have answered the foregoing question “Yes” then answer the following question: (b) Do you find from a preponderance of the evidence that in causing the highway to be ob- structed by the overturned trailer of Marshall, Mrs. Campbell was also negligent with respect to the collision of Fore’s automobile with the obstruction and the injuries suffered by the rescuers while they were engaged in the removal of the obstruction from the highway? Yes ___ No ___ Instruction: Before you can answer the foregoing question “Yes” you must find that Mrs. Campbell as an ordinary prudent person under all the circumstances that conditioned her operation of the truck and the creation of the obstruction of the highway by Marshall’s trailer, should have foreseen the risk of the collision of Fore’s automobile, or the collision of some other traveller’s ve- hicle, with the obstruction, and the risk of some such injuries as were suffered by the rescuers while they were engaged in the removal of the obstruction from the highway; and you must further find that Mrs. Campbell failed to exercise reasonable care to avoid such risks and injuries. [57] Similar issues and instructions should have been submitted if the evidence was suffi- cient to support an inference arising from Marshall’s conduct in the operation of his automobile and trailer. Inasmuch as Fore, for all practical purposes, conceded his negligence, it would not be necessary to submit an issue covering his negligence.
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