
    Ola SMITH et al., Petitioners, v. James SMITH et ux., Respondents.
    No. B-3143.
    Supreme Court of Texas.
    March 29, 1972.
    
      Wheeler, Watkins, Hubbard, Patton & Peek, James N. Haltom and John B. Greer, III, Atchley, Russell, Hutchinson & Waldrop, Norman C. Russell, and Jerry Croston, Texarkana, for petitioners.
    Hitt & Gayle, Inc., Cahill Hitt, Leon F. Pesek, Inc., Texarkana, for respondents.
   ON APPLICATION WRIT OF ERROR

PER CURIAM.

This suit was brought by James Smith and wife, Racine Smith, to recover damages for injuries sustained by the latter in an automobile collision. James Smith was driving one of the automobiles involved in the collision, and Racine Smith was a passenger in the vehicle. There are two defendants. One is Horace Rowe, who was driving an automobile that went into a skid and came to rest across the lane in which the plaintiffs’ vehicle was traveling. The other defendant is Ola Smith whose automobile ran into the rear of plaintiffs’ vehicle after it had stopped.

The jury found that the accident was proximately caused by the negligence of Horace Rowe in stopping too suddenly, the negligence of Ola Smith in following too closely, and the contributory negligence of James Smith in failing to drive to the right of the Rowe automobile and in permitting his vehicle to remain in the street. The trial court rendered judgment that plaintiffs take nothing, but the Court of Civil Appeals reversed and rendered judgment in plaintiffs’ favor for the $15,600.00 damages assessed by the jury. 473 S.W.2d 299.

The Court of Civil Appeals held: (1) that the $5,600.00 awarded to Racine Smith by the jury for pain and suffering constitutes her separate property and that she is entitled to recover that amount despite the contributory negligence of her husband; and (2) that there is no evidence to support the findings of contributory negligence. We agree with the latter holding and it is unnecessary to determine at this time and in this case whether the other conclusion of the Court of Civil Appeals is sound. See Franco v. Graham, Tex.Civ. App., 470 S.W.2d 429 (writ of error granted and case now under submission in this Court). The application for writ of error is refused, no reversible error.  