Biggers v. Continental Bus System, Inc.

• Decision Date: 22 May 1957
• Docket Number: No. A-5280,A-5280
• Citation: 157 Tex. 351,303 S.W.2d 359
• Parties: Mrs. Patricia BIGGERS et al., Petitioners, v. CONTINENTAL BUS SYSTEM, Icn., et al., Respondents.
• Court: Texas Supreme Court

Page 359

303 S.W.2d 359

157 Tex. 351

Mrs. Patricia BIGGERS et al., Petitioners, v. CONTINENTAL BUS SYSTEM, Icn., et al., Respondents.

No. A-5280.

Supreme Court of Texas.

May 22, 1957.

Rehearing Denied July 10, 1957.

Butler, Binion, Rice & Cook, Wm. N. Blanton, Jr., Houston, for Commercial Standard Ins. Co.

Pepper & Markward, Fort Worth, James P. Hart, Austin, for Mrs. Biggers and minor children.

Andrews, Kurth, Campbell & Bradley, Hall E. Timanus, Houston, for Betty J. Epps Gross and husband.

Looney, Clark & Moorhead, Austin, Chilton Bryan, Houston, Strasburger, Price, Kelton, Miller & Martin, Dallas, for Continental Bus System, Inc.

Hamblen & Bobbitt, Karl E. Kraft, Houston, for A. H. Lightfoot and others.

CALVERT, Justice.

On December 12, 1956 we entered judgment in this case affirming the judgment of the Court of Civil Appeals and filed an opinion now reported in 298 S.W.2d 79. On February 27, 1957 we overruled a motion for rehearing filed by petitioners, but thereafter granted a second motion for rehearing. We now set aside our former judgment and reverse the judgment of the Court of Civil Appeals and remand the cause to that court for further proceedings as per the opinion which follows.

This is a suit by Mrs. Patricia Biggers and her children for damages resulting from a collision between a Ford automobile 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. Continental Bus System and Mrs. Betty Jo Epps Gross and husband, William Gross, Jr., were defendants in the suit. 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 killed instantly in the collision.

The bus belonging to Continental was proceeding generally in a northerly direction from Houston to Madisonville, Texas, on 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 138 feet north of a bridge over Nelson Creek. 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 approaching from the north traveling south on the highway. The first was a Hudson automobile. Approximately 100 or more feet behind the Hudson was the Ford 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. By the time of the trial Miss Epps had married William Gross, Jr. It had been raining and the paved portion of the highway was wet. 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 was being driven at 40 to 45 miles per hour and was slowed to 10 to 15 miles per hour. The Ford 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 saw the brake light of the Ford go on, and she put on her brakes to avoid colliding with the Ford. Her brakes locked the wheels on the Chevrolet and it slid into the Ford, striking it a little to the right of the center of the rear bumper. This resulted in the Ford being propelled somewhat diagonally eastward into the bus' right-hand 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 most of 79 special issues favorably to the plaintiffs. The jury found the driver of the bus guilty of negligence in failing to keep a proper lookout, in failing to apply his brakes, in driving at an excessive rate of speed and in driving at a speed in excess of 55 miles per hour, and found each act of negligence to be a proximate cause of the collision. The driver was found not to have been acting in an emergency created by conditions other than his own negligence. The jury found Mrs. Gross guilty of certain negligent acts each of which was also found to be a proximate cause of the collision. Biggers was absolved of all charges of negligence. He was found to have acted in an emergency after the Ford was hit by the Chevrolet. The driver of the Hudson was also absolved of all charges of negligence. The collision was found not to have been the result of an unavoidable accident. Plaintiffs pleaded '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. Any liability on the part of Continental by virtue of the doctrine of discovered peril is therefore not in the case as presented to us. All parties are agreed that no recovery can be had under that doctrine.

Judgment was entered by the trial court as follows: Plaintiffs were awarded judgment against Continental and Mrs. Gross and husband, jointly and severally, for the amount of their damages as found by the jury in the sum of $101,080; Continental and Mrs. Gross were each denied a recovery over against the other by way of indemnity; Commercial Standard Insurance Company, an intervenor, was subrogated to so much of plaintiffs' judgment as was necessary to reimburse it for the sum paid to the plaintiffs under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., and Continental and its driver were denied any recovery of damages for their injuries claimed in a cross-action against Mrs. Gross and husband and in a third-party action against Texas Motors, a partnership, the employer of Biggers. Continental and Mrs. Gross and husband appealed, but in the Court of Civil Appeals Continental did not attack the judgment in so far as it was denied a recovery against Mrs. Gross and husband or against Texas Motors.

Upon appeal the Court of Civil Appeals reversed the judgment of the trial court in part and rendered judgment that the plaintiffs take nothing against Continental upon the ground that, as a matter of law, none of the negligent acts of the bus driver was 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 opinion of the Court of Civil Appeals.

The judgment of the Court of Civil Appeals in favor of Continental must be reversed if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support any one of the findings of proximate cause. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498. Moreover, we must approach a determination of the question in the light of our former admonition regarding questions of 'no evidence' that 'Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts-the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action.' Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983.

If we could give controlling effect to evidence that the Ford entered the wrong traffic lane when the bus was only 15 or 20 feet distant, that the Ford was observed to 'jump' out in front of the bus, or that the Ford entered the bus' lane of traffic less than two seconds before the collision; or if we were at liberty to use that evidence as our view of the probable facts in reconstructing the scene of the collision and the circumstances surrounding it; or even if we were permitted to consider that and similar evidence in deciding whether there is evidence of probative value to support the jury findings of proximate cause, we might find justification for setting aside those findings. But we may do none of these things. The boundaries of our duty are well established by decisions of this Court. We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698; Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562.

If there is evidence to support the jury's finding of proximate cause in connection with any of the negligent acts, the findings in connection with the other negligent acts need not be considered. We have concluded that there is evidence of probative force supporting the findings that the excessive speed at which the bus was traveling was a proximate cause of the collision. Accordingly, we will not determine whether there is evidence of probative force supporting the finding that the failure of the driver of the bus to keep a proper lookout and to apply his brakes were each also a proximate cause of the collision.

The two necessary elements of proximate cause are foreseeability and causation. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355. Continental contends that neither element is present in this case.

Continental does not rest its contention that the element of foreseeability is absent entirely on the narrow ground that it was not required to foresee the exact manner in and by which the Ford entered the wrong traffic lane; its contention encompasses the broader view that one operating an automobile on a highway is not required, under any circumstances, to foresee or anticipate that an automobile traveling in the opposite direction may enter the wrong traffic lane. It concludes, for that reason, that the...