Taylor v. Bair

• Decision Date: 20 August 1969
• Docket Number: No. 26575.,26575.
• Citation: 414 F.2d 815
• Parties: Edward TAYLOR et al., Plaintiffs-Appellants, v. Carolyn Marie BAIR et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 815 (1969)

Edward TAYLOR et al., Plaintiffs-Appellants, v. Carolyn Marie BAIR et al., Defendants-Appellees.

No. 26575.

United States Court of Appeals Fifth Circuit.

July 29, 1969.

Rehearing Denied August 20, 1969.

Ernest L. Sample, Gilbert T. Adams, Beaumont, Tex., for appellants.

Howell E. Stone, Henry P. Giessel, John Mustachio, Houston, Tex., Talbert, Giessel, Barnett & Stone, Houston, Tex., for appellees.

Before GOLDBERG and MORGAN, Circuit Judges, and LIEB, District Judge.

GOLDBERG, Circuit Judge:

In this automobile accident case we are faced with the task of ferreting the record to determine whether the district court erred in directing a verdict in favor of the defendant, Mrs. Carolyn Marie Bair. Jury displacement through a directed verdict is a phenomenon only occasionally justified. We find no justification in the case before us.

This tragedy occurred in Beaumont, Texas, on the night of April 28, 1966. The defendant, Mrs. Bair, was driving west in the north lane of College Street Extension, a four lane street divided by a grass median strip. Mrs. Mavis Chow and the Ward children, Ricardo 4 years old and Chris 6 years old, were apparently crossing College Street Extension on their way to a trailer camp on the north side of the street. Chris crossed the road safely, but Ricardo and Mrs. Chow were killed when the automobile driven by Mrs. Bair struck them as they crossed the north lane of the highway.

The plaintiffs in this suit are Edward Taylor, husband of Mavis Chow, and the three children of Edward Taylor and Mavis Chow.¹ James Ward, the father of Ricardo, subsequently intervened as a party plaintiff asking damages for the wrongful death of his four and one-half year old son, Ricardo.

Plaintiffs founded their cause of action on the alleged negligence of Mrs. Bair in operating her automobile at an excessive rate of speed and failing to keep a proper lookout. In presenting their case the plaintiffs were forced to rely on the defendant's admissions and the post-accident investigation. The only known eye witness was Chris Ward who did not testify. Thus, this case, in common with may other wrongful death cases, suffers from an evidential vacuity.

Mrs. Bair testified that she was traveling west in the north lane of the highway at a speed of 35 miles per hour when she noticed a young boy running away from the highway on the north shoulder. According to her testimony, Mrs. Bair then removed her foot from the accelerator and glanced in her rear view mirror to see if any cars were behind her. Seeing no one to the rear, Mrs. Bair looked back at the boy and then straight ahead. At that instant, according to her testimony, she saw Mrs. Chow and Ricardo about three feet in front of her car. Mrs. Bair said that she did not apply her brakes after striking the decedents but allowed her car to coast to a stop. Explaining her failure to brake Mrs. Bair said that Mrs. Chow had been thrown onto the hood of the car and a sudden stop might have thrown the victim back into the path of the car. She further testified that Ricardo was thrown off to the north side of the highway by the impact.

The police officer investigating the accident testified that according to the measurements taken after the accident the car traveled 238 feet from the point of impact; that the body of Ricardo was found 183 feet west of the point of impact; and that Mrs. Chow's body was found 218 feet west of the point of impact. He also stated that smears of blood on the highway indicated that Ricardo and Mrs. Chow skidded 28 and 30 feet respectively after they finally fell to the pavement. The policeman indicated that he found no evidence that Mrs. Bair was speeding at the time of the accident. However, when questioned further, he conceded that he did not know the speed required to catapult a pedestrian's body onto the hood of an automobile or to propel a body a given number of feet after impact. He further conceded that he did not know how to calculate the speed of Mrs. Bair's car from the measurements taken at the time of the accident.

On the basis of the foregoing evidence the trial judge directed a verdict for the defendants at the close of plaintiffs' case, thus frustrating the plaintiffs' demand for a jury trial. The defendants seek to justify jury disengagement because (1) there was no evidence of negligence on the part of Mrs. Bair; (2) "sudden emergency" was established as a matter of law; and (3) there was no evidence of damage of a pecuniary nature suffered by James Ward.

I. We approach appellees' first point concerning Mrs. Bair's negligence from the fundamental position that negligence is a judgmental concept which must be jury-determined unless under the facts of a specific case reasonable men could come to but one conclusion. Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365 April 7, 1969.

The court must be ever alert to prevent the debasement of the jury in our judicial process. The responsibility of the jury must not be subject to judicial subordination except under those compelling circumstances most recently articulated in Boeing v. Shipman, supra, wherein we said:

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover\'s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. Id. at 374.

The question, therefore, is whether a jury could reasonably find on the facts presented and inferences raised that Mrs. Bair did fail to keep a proper lookout or did operate her vehicle at an excessive rate of speed. In making such a judgment the jury may pick and choose among facts and inferences restrained only by reason. It need not accept a single version where circumstances belie that conclusion. Sartor v. Arkansas Nat. Gas. Corp., 1943, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; Aetna Life Ins. Co. v. Ward, 1890, 140 U.S. 76, 11 S.Ct. 720, 35 L.Ed. 371; Lynch v. Ricketts, 1958, 158 Tex. 487, 314 S.W.2d 273; Benoit v. Wilson, 1951, 150 Tex. 273, 239 S.W.2d 792; Sneed v. Fort Worth Transit Co., Tex.Civ.App.1968, 427 S.W.2d 920.

In Benoit v. Wilson, supra, the Texas Supreme Court stated:

"The jury is the exclusive judge of the facts proved, the validity of the witnesses and the weight to be given to the testimony. * * * The jury had the sole right to believe all or any part of petitioner\'s testimony. It had the right to say, and reasonably so, that from all the facts and circumstances in this case, we, the jury do not believe * * * your testimony * * *." Id., 239 S.W.2d at 796-797.

In addition, Mrs. Bair being an interested witness brings into play the rule of permissible skepticism.

"As to the testimony of interested witnesses, the general rule is that, while the jury has no right arbitrarily to disregard the positive testimony of unimpeached and uncontradicted witnesses, the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury. Stated in another form, the rule is that the uncontradicted, uncorroborated testimony of a party to a suit will not authorize or support an instructed verdict." Flack v. First Nat. Bank of Dalhart, 1950, 148 Tex. 495, 226 S.W.2d 628 at 633.²

The only exception to the above rule arises when the following conditions are met: (1) The testimony of the interested witness is not contradicted by that of another witness or by attendant circumstances; and (2) the testimony is clear, direct, and positive as well as being free from contradiction, inaccuracies, and circumstances tending to cast suspicion on it. Ex Parte Rohleder, Tex.1967, 424 S.W.2d 891; Moss v. Hipp, Tex.1965, 387 S.W.2d 656; Cochran v. Wool Growers Central Storage Co., 1942, 140 Tex. 184, 166 S.W.2d 904.

In the case before us Mrs. Bair's statements are not so clear and uncontradicted by the circumstances as to carry this imprimatur of sanctified truth. The physical evidence presented by the investigating officer, together with Mrs. Bair's own testimony, indicates that the accident might in fact have been due to her improper lookout or excessive speed.

No static or immutable rule exists regarding proper lookout; consequently juries have found improper lookout in a variety of circumstances. City Transp. Co. of Dallas v. Davis, Tex.Civ. App.1953, 257 S.W.2d 476, error ref. n. r. e.; Bigelow v. Rupp, Tex.Civ.App. 1946, 192 S.W.2d 791, error ref. n. r. e.; Gillette Motor Transport, Inc. v. Kelly, Tex.Civ.App.1940, 141 S.W.2d 959; Stamper v. Scholtz, Tex.Civ.App.1930, 29 S.W.2d 883, error ref. It is clear, however, that in Texas a great duty of care is required when a motorist is aware of the presence of a child. In Lester v. Weddle, Tex.Civ.App.1968, 426 S.W.2d 618, rem'd on other grounds, Tex.1968...