Biggers v. Continental Bus System, Inc.

• Decision Date: 12 December 1956
• Docket Number: No. A-5280,A-5280
• Citation: 298 S.W.2d 79,157 Tex. 351
• Parties: Mrs. Patricia BIGGERS et al. (Betty Jo Epps Groce et vir), petitioners, v. CONTINENTAL BUS SYSTEM, Inc. et al. (Mrs. Patricia Biggers et al.),Respondents.
• Court: Texas Supreme Court

Page 79

298 S.W.2d 79

157 Tex. 351

Mrs. Patricia BIGGERS et al. (Betty Jo Epps Groce et vir), petitioners, v. CONTINENTAL BUS SYSTEM, Inc. et al. (Mrs. Patricia Biggers et al.),Respondents.

No. A-5280.

Supreme Court of Texas.

Dec. 12, 1956.

Rehearing Denied Feb. 27, 1957.

Butler, Binion, Rice & Cook, Houston, Wm. N. Blanton, Jr., Houston, Pepper & Markward, Ft. Worth, James P. Hart, Austin, for petitioner.

Andrews, Kurth, Campbell & Bradley, Hall E. Timanus, Houston, Looney, Clark & Moorhead, Austin, Chilton Bryan, Houston, Strasburger, Price, Kelton, Miller & Martin, Dallas, Hamblen & Bobbitt, Houston, for respondent.

GRIFFIN, Justice.

This is a suit by Mrs. Patricia Biggers and her children against the Continental Bus System, Inc. for damages resulting from a collision between a Ford car driven by Enoch A. Biggers, Jr., husband and father of petitioners, and a passenger bus belonging to Continental Bus System driven by Jack P. Lanham, an employee of the Bus Company. The collision took place on Highway 75 about eight miles north of Huntsville, Texas, about 8:52 a. m. on December 20, 1951. Enoch A. Biggers, Jr. was instantly killed in the collision.

The bus belonging to the Bus Company was proceeding generally in a northerly direction from Houston to Madisonville, Texas, upon Highway 75, and was on its own proper right side of the highway, well to the right of the center stripe of such highway. The collision between the vehicles took place a few hundred feet north of a bridge across Nelson Creek on said highway. The highway was 24 feet wide at the point of the collision and the bridge was 28 feet wide. As the bus was being driven north along the highway, three automobiles were coming south down the highway. The first was a Hudson car; approximately 100 or more feet behind the Hudson was the Ford car driven by Enoch A. Biggers, Jr., and a short distance behind the Ford was a Chevrolet automobile driven by Miss Betty Jo Epps accompanied by Mrs. Ernest De Jernett. It had been raining the night before and the paved portion of the highway was wet, but there is no evidence that the highway was slick. As the Hudson approached the bridge across the highway the driver of the Hudson slowed down to observe the creek to ascertain if it was too muddy for fishing. The shoulders on both sides of the highway were wet and muddy. There is evidence that the Hudson had been driven along at 40 to 45 miles per hour and slowed to 10 to 15 miles per hour. The Ford car was being driven faster than the Hudson, so when the Hudson slowed down the driver of the Ford put on his brakes to avoid a collision with the Hudson. Mrs. Gross (then Miss Epps, who by the time of the trial had married Wm. Gross) saw the brake light of the Ford go on, and she put on her brakes to avoid colliding with the Ford. Her brakes 'locked', i. e., the brakes locked her wheels and she slid into the Ford striking it a little to the right of the center of the rear bumper. This resulted in the Ford car being propelled diagonally eastward across the highway and in front of the bus and into the bus' righthand side of the highway. The collision resulted between the bus and the Ford and all three occupants of the Ford were killed instantly.

Upon a trial before a jury the jury answered 79 special issues favorable to the plaintiffs and judgment was rendered for plaintiffs against the Bus Company and Mrs. Gross and husband in the sum of $101,800. The jury found the driver of the bus guilty of negligence in failing to keep a proper lookout; in failing to apply his brakes; and in driving at an excessive rate of speed; in driving at a speed in excess of 55 m. p. h., and found each act of negligence to be a proximate cause of the collision. The jury found Mrs. Gross guilty of certain negligent acts which were also a proximate cause of the collision. Plaintiffs plead 'discovered peril' as a ground of recovery and the trial court by appropriate issues submitted this ground of liability. The jury, in answering these issues, found that the discovery by the bus driver of the perilous position of the deceased did not occur at such time that the driver could have avoided the collision. Therefore, any liability on the part of the Bus Company by virtue of the doctrine of discovered peril is not in the case as presented to us. All parties are agreed that no recovery can be had under that doctrine.

Upon appeal the Court of Civil Appeals reversed and rendered the judgment against the Bus Company upon the ground that, as a matter of law, the negligent acts of the bus driver (assuming that he was negligent) were not a proximate cause of the collision. The judgment of the trial court was otherwise affirmed. 277 S.W.2d 228. A more detailed statement of facts will be found in the Court of Civil Appeals' decision.

All parties agree that plaintiff must recover, if at all, under the findings of the jury as to primary negligence and proximate cause. The plaintiffs, having recovered a judgment in the trial court on favorable jury findings, and this judgment having been rendered against plaintiffs on 'no evidence', it becomes the duty of this Court 'to examine and consider all of the evidence bearing on the controlling issues, and having done so to decide whether there is evidence of probative value to support the answers made by the jury to the issues.' Hall v. Medical Bldg. of Houston, Texas, 1952, 151 Tex. 425, 251 S.W.2d 497, 498.

It is also well settled that there can be more than one proximate cause of a collision, and that all those whose negligence is a proximate cause will be liable in damages for the results of the collision. Walsh v. Dallas Railway & Terminal Co., 140 Tex. 385, 167 S.W.2d 1018; Blakesley v. Kircher, Tex.Com.App., 41 S.W.2d 53, 55; Northern Texas Utilities Co. v. Floyd, Tex.Civ.App., 21 S.W.2d 6, wr. dism., w. o. j.; 30-B Tex.Jur. 223, Sec. 44.

For a negligent act or omission to be a proximate cause, the result of such act must be one which was a foreseeable result. 'But it seems to us that as applied to the law of negligence, at least, a better ground for the rule (of proximate cause) is that a party should not be held responsible for the consequences of an act which ought not reasonably to have been foreseen. In other words, it ought not to be deemed negligent to do or to fail to do an act when it was not anticipated, and should not have been anticipated, that it would result in injury to anyone. To require this is to demand of human nature a degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.' Texas & P. Ry. Co. v. Bigham, 1896, 90 Tex. 223, 38 S.W. 162, loc. cit., 2nd col., at page 163. Safeway Stores of Texas v. Brigance, Tex.Civ.App.1938, 118 S.W.2d 812(5), dism., w. o. j.; Phoenix Refining Co. v. Tips, 1935, 125 Tex. 69, 81 S.W.2d 60(1); City of Dallas v. Maxwell, Tex.Com.App.1923, 248 S.W. 667(2, 3), 27 A.L.R. 927; 30-B Tex.Jur. 217, Sec. 40, and p. 222, Sec. 43.

It is not necessary that the defendant should or would reasonably anticipate the very consequences or the exact nature of the plaintiff's injury or the precise manner of its infliction in order that such consequence be foreseeable. '* * * It is sufficient that the defendant would reasonably have anticipated consequences or an injury of the general nature of that which ensued. * * *' Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 356; Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110, 111.

'* * * A prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. Panhandle & S. F. Ry. Co. v. Sledge, Tex.Civ.App., 31 S.W.2d 146, 149; Sledge v. Panhandle & S. F. R. Co., Tex.Com.App., 45 S.W.2d 1112. * * *' Phoenix Refining Co. v. Tips (125 Tex. 69, 81 S.W.2d 61), supra.

'It is well settled that a person is not bound to anticipate negligent or unlawful conduct on the part of another. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, wr. ref. * * *' De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95(2, 3), 98.

'A motorist may assume that a vehicle approaching on its own right side of the road will remain on that side, and he is not expected to anticipate that such vehicle will leave its side of the road and turn into his path.' 60 C.J.S., Motor Vehicles, § 317 a, pp. 733-734.

With these principles in mind let us examine the evidence in this case, viewed most favorably to the plaintiffs, and in support of the judgment of the trial court. The bus driver stated that the Ford turned in front of the bus at a distance of some 15 or 20 feet, but he stated that was 'just an estimate in feet. I couldn't be exact, * * *.' He stated that as soon as he saw the Ford coming across the road into his lane of traffic, he swerved his bus to the right. Mitchell saw the bus swerve only one time, and that immediately prior to the collision. Mitchell was driving a gasoline transport truck only a short distance behind the bus and testified that he saw the bus, the oncoming cars, the Hudson slow down, the Ford 'jump' out in front of the bus, but he did not see the actual collision as he glanced down at his tachometer right after the Ford came across in front of the bus. Mrs. Gross, the driver of the Chevrolet, testified that she saw the brake lights on the rear of the Ford go on; that she realized the Ford was solowing down; that she stepped on her brakes...