Alamo Ambulance Service, Inc. v. Moulton

• Citation: 402 S.W.2d 200
• Decision Date: 09 March 1966
• Docket Number: No. 14440,14440
• Parties: ALAMO AMBULANCE SERVICE, INC., Appellant, v. Philip J. MOULTON et al., Appellees. . San Antonio
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 200

402 S.W.2d 200

ALAMO AMBULANCE SERVICE, INC., Appellant, v. Philip J. MOULTON et al., Appellees.

No. 14440.

Court of Civil Appeals of Texas.

San Antonio.

March 9, 1966.

Rehearing Denied April 20, 1966.

Lang, Byrd, Cross, Ladon & Oppenheimer, Paul M. Green, San Antonio, for appellant.

Lieck & Lieck, Jack Paul Leon, Geo. H. Goodwin, Arch B. Haston, San Antonio, for appellees.

BARROW, Justice.

This damage suit involves a three-car intersectional accident with two separate collisions. Appellee Moulton brought this suit against appellant, Alamo Ambulance Service, Inc., and appellee Louie Cardenas, seeking joint and several judgment for damages resulting from personal injuries. The jury found both defendants committed acts of negligence proximately causing the injuries sustained by Moulton. The trial court granted Cardenas' motion for judgment non obstante veredicto and entered judgment whereby Moulton recovered only against Alamo.

On this appeal, Alamo complains of the granting of Cardenas' motion and urges that the judgment should be reformed to grant Alamo contribution under the verdict of the jury. It also urges the trial court abused its discretion in refusing Alamo leave to file a trial amendment and to give a requested instruction relative to Moulton's claim for damages, and that the jury verdict on Moulton's damages is grossly excessive. It asserts jury misconduct as well as coercion of the jury by the trial court. Cardenas does not assert any cross-assignments of error.

On September 16, 1963, at about 4:30 p.m., this accident occurred at the intersection of East Commerce and Cherry Streets in the City of San Antonio. At the time of the accident, Alamo's station wagon, operated by its employee, Dickie Wolfe, was proceeding west on Commerce Street; Cardenas' Buick was proceeding north on Cherry Street, and Moulton's van was headed south on Cherry Street, but was stopped just north of the intersection. Alamo's station wagon and Cardenas' Buick collided near the center of the intersection. Following this collision, Cardenas' Buick continued north for another thirty-two feet and collided with Moulton's van.

This intersection was controlled by a traffic light and the primary controverted issue between Cardenas and Alamo was over who had the green light. The jury found that Alamo's driver ran the red light at an unlawful and excessive rate of speed, failed to keep a proper lookout, and failed to timely apply the brakes. Each of these acts was found to be a proximate cause but not the sole cause of the collision in question. The jury further found that Cardenas accelerated his automobile immediately prior to the collision with Moulton's van and that this act was negligence and a proximate cause of the collision in question. Cardenas failed to apply his brakes immediately prior to the collision, but this failure was found not to be negligence. Other issues inquiring of Cardenas' conduct were answered favorably to him .

A trial court is authorized to render judgment non obstante veredicto only when there is no evidence warranting a submission of the issue to the jury. Rule 301, Texas Rules of Civil Procedure; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). In considering whether there was any evidence to support the jury's answers, we must consider only that evidence and the reasonable inferences to be drawn therefrom, that are favorable to the answers of the jury. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955). If there is evidence of probative value that will support the findings of negligence and proximate cause against Cardenas, the trial court was in error in granting his motion and in not entering judgment jointly and severally against Cardenas and Alamo.

There is considerable evidence that Cardenas accelerated his vehicle after the initial collision with Alamo's station wagon--Moulton heard a motor roar; Cardenas' vehicle proceeded thirty-two feet after the first collision and knocked Moulton's van back some fifteen feet, although he started from a stopped position; and, in fact, Cardenas drew a similar conclusion in his testimony: 'I figured that when I got hit, I grabbed my wheel and my foot went down on the gas naturally, it really took off then. * * * I figure that's just what happened, I grabbed the wheel, foot went down, lost control and hit him.'

A much closer question is raised as to whether this act was negligence under the circumstances. It has been held that where a driver Has lost control of his vehicle in a collision brought about through no fault of his own, he is not responsible for a second collision caused by this lack of control. Dallas Transit Co. v. Tolbert, Tex.Civ.App., 337 S.W.2d 617, wr. ref. n.r.e.; Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448, no wr. hist.; Renner v. National Biscuit Co., Tex.Civ.App., 173 S.W.2d 332, wr. ref. w.o.m. It is seen, however, that in each of these cases, the evidence was undisputed that the automobile was out of control from a first collision at the time of the second collision.

In Tolbert it was said: 'The evidence conclusively establishes the fact that when the truck jack-knifed * * * it skidded entirely out of control * * *.' In Rhodes the Court found: 'During this brief period of time, Enis did not have an opportunity to regain control, stop his truck or change its course to avoid striking the Rhodes car .' In Renner the Court said: 'It is a matter of common knowledge, too plain for dispute, that a driver knocked out of his seat, knocked loose from the steering wheel and brakes, with his truck completely on the wrong side of the highway out of control, could not possibly regain effective control of the vehicle * * *.'

The evidence here does not conclusively show that Cardenas lost control of his vehicle in the first collision. He was not knocked loose from the wheel; he was not injured or dazed by this collision. The only evidence of lack of control is his testimony that after he stepped on the gas pedal the vehicle 'really took off' and that's when he lost control. The jury could infer from the physical facts that he could have avoided striking Moulton's car if he had exercised the care of an ordinarily prudent person. There was no submission of whether Cardenas was acting in an emergency at this time.

It is our opinion that there is evidence more than a scintilla to support the jury findings that Cardenas' act in accelerating his vehicle after the first collision was negligence and a proximate cause of the collision with Moulton's van. Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, wr. ref. n.r.e. The trial court erred in granting the motion for judgment non obstante veredicto and entering a take-nothing judgment as to Cardenas

After the evidence had been closed, but before the charge of the court was filed or submitted to the jury, appellant tendered a trial amendment to the effect that Moulton had failed to mitigate his damages, and in fact contributed to cause an injury of greater severity by failing to exercise the care of an ordinarily prudent person in following competent medical advice in the treatment of his injuries. Appellant timely requested special issues inquiring as to whether Moulton failed to exercise such care, and if not, was this failure a proximate cause of his damages. Appellant also requested an instruction on the damage issue to the effect that Moulton could not recover for any damages which could have been so avoided. Moulton objected to the filing of this trial amendment and leave was denied. The trial court also refused to give the requested issues or instruction.

Moulton's principal injuries in the accident were a badly bruised hand and right kneecap. The hand healed in about two weeks, however, the knee was still giving him trouble at the time of the trial in March, 1965. Dr. Berry, who was Moulton's family doctor, testified that he saw Moulton for these injuries on August 17, 24 and 31, 1963. He was afraid of prepatella bursitis because of the knee injury. He prescribed heat, rest and elevation, and by August 31, Dr. Berry said that the injury appeared about healed. Moulton was instructed by Dr. Berry to be careful with his knee. Dr. Berry saw Moulton next in February, 1964, and Moulton was still complaining of the knee. Dr. Berry diagnosed Moulton's condition as pre-patella bursitis. This is a rather common ailment known as 'housemaid's knee' and one that Dr. Berry expected to be able to control through heat, rest and elevation. Dr. Berry testified that proper treatment required a patient to be off his knee for a considerable period of time, in that any recurrent trauma causes swelling and irritation of the bursa lining. He testified that when he saw Moulton in January, 1965, he was still having difficulty because of repeated trauma to the knee. Dr. Berry expressed the opinion that if Moulton would take care of the knee, he would have no trouble with it.

Moulton worked for a vending machine company at the time of the accident and a necessary part of his duties required him to get down on his knees and clean under the machines. Contrary to Dr. Berry's impression, Moulton did not lay off from work at all following the accident, but attempted to carry out his regular duties. This resulted not only in the recurrent trauma to his knee, but in unsatisfactory performance of his duties and subsequent dismissal.

It is a well-settled rule of law that one injured by the wrong of another is obliged to exercise reasonable care to minimize his damages, under pain of not being allowed to recover against the wrongdoer for elements or consequences of the injury which could have been obviated by the exercise of such care. City of Ft. Worth v. Satterwhite, Tex.Civ.App., 329 S.W.2d 899, no wr. hist.; Maywald v. Perry, 254 S.W.2d 431, wr. ref. n.r.e.; Houston, E. & W.T.R. Co. v. Jones,...