Boddy v. Canteau, 14747

• Decision Date: 07 May 1969
• Docket Number: No. 14747,14747
• Citation: Boddy v. Canteau, 441 S.W.2d 906 (Tex. Ct. App. 1969)
• Parties: Roy BODDY, Appellant, v. Joseph CANTEAU, Appellee. . San Antonio
• Court: Texas Civil Court of Appeals

Page 906

441 S.W.2d 906

Roy BODDY, Appellant, v.Joseph CANTEAU, Appellee.

No. 14747.

Court of Civil Appeals of Texas San Antonio.

May 7, 1969.

Rehearing Denied June 4, 1969.

Huson, Clark & Thornton, Hobart Huson, Jr ., Robert B. Summers, San Antonio, for appellant.

Tinsman & Cunningham, San Antonio, for appellee.

KLINGEMAN, Justice.

Suit for damages by Joseph Canteau, herein referred to as plaintiff, against Roy Boddy, herein referred to as defendant, for injuries sustained when a car being driven by plaintiff was struck from the rear by a car being driven by defendant.Trial was to a jury who found that defendant failed to keep such a lookout as a person of ordinary prudence would have kept under the same or similar circumstances, and that such failure was a proximate cause of the collision in question; that defendant failed to apply the brakes of his automobile in such a manner and at such time as a person of ordinary prudence would have applied them under the same or similar circumstances, and that such failure was a proximate cause of the collision in question; that plaintiff did not fail to keep a proper lookout; that the sum of $6,000.00 would fairly and reasonably compensate plaintiff for injuries sustained by him.Based upon such jury findings, the court awarded judgment in favor of plaintiff for $6,857.37, the plaintiff and defendant having entered into a stipulation that plaintiff would be entitled to recover $639.38 for property damages and $218.00 for reasonable and necessary medical expenses if he was entitled to a judgment in his favor.

On or about March 24, 1967, plaintiff was driving his automobile in a westerly direction on Rittiman Road, a paved street in San Antonio.There was a heavy rain at such time and water was crossing the street at a low point where the collision occurred.As he approached the water crossing, plaintiff was in the process of slowing his automobile from a speed of about 25 m.p.h. to a speed of about 15 m.p.h. when his automobile was struck from the rear by an automobile being driven by defendant, which automobile was traveling in the same direction as that of plaintiff.Plaintiff was the only witness to testify in the case.

Defendant, by his first point of error, contends that the 'court erred in failing to include as a part of his definition of 'proximate cause' in his charge the term 'new and intervening (independent) cause' and then defining such term.'

Plaintiff agrees that it is the law in Texas, where there is pleading and evidence raising the issue of new and independent cause the trial court should include in its definition of proximate cause the element of new and independent cause and should define the term 'new and independent cause.'However, plaintiff asserts that defendant's first point of error should be overruled because: (1)Defendant failed to plead that any act or condition was a new and independent cause of the collision in question; (2) there is no evidence that any act or condition, natural or manmade, affected the defendant in any way so as to interrupt the causal connection between the original conduct of the parties in order to become itself the proximate cause of the collision; (3)defendant's requested instruction relating to new and independent cause was erroneous, and defendant never tendered a proper definition of 'new and independent cause' either with his requested instruction or in connection with his objections to the court's charge.

The term 'new and independent cause' means the act or omission of a separate and independent agency which destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury.Phoenix Refining Company v. Tips, 125 Tex. 69, 81 S.W.2d 60(1935);Young v. Massey, 128 Tex. 638, 101 S.W.2d 809(1937).A new and independent cause is precisely what the language implies, that is, a new and independent agency that interrupts the causal connection between the original conduct of the parties and becomes itself a proximate cause, even though the injury would not have occurred except for the original negligence.Dallas Ry. & Terminal Co. v. Little, 109 S.W.2d 289(Tex.Civ.App.--Dallas1937, writ dism'd).

Our Supreme Court in Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379(1952), said: 'This court has held time and again that where there is Pleading and evidence raising the issue of new and independent cause the trial court's definition of proximate cause must include the element of new and independent cause and that the phrase 'new and independent cause' must itself be defined.'(Emphasis ours.)Defendant has cited four cases in support of his contention that new and independent cause is required to be submitted, where raised by the evidence, even though new and independent cause has not itself been pleaded.These four cases are: Southland Greyhound Lines v. Cotten, 126 Tex. 596, 91 S.W.2d 326;Orange & N.W.R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973;Young v. Massey, 128 Tex. 638, 101 S.W.2d 809;andTarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401.All of such cases are prior in date to Dallas Railway & Terminal Co. v. Bailey, supra.

All of those cases lend support to defendant's position that if the evidence raises the issue of new and independent cause, it is reversible error not to include the term in a definition of proximate cause.However, none of such cases pass on the question of whether it is necessary to plead new and independent cause.Assuming, without deciding, that it is not necessary to plead new and independent cause, we find no reversible error of the trial court in failing to include as a part of the definition of proximate cause in its charge, the term 'new and independent cause,' because there is no evidence to raise such issue.Defendant's contentions in support of this point of error are bottomed on the testimony of plaintiff that there was a heavy rain, there was a gradual down grade in the direction plaintiff was proceeding to the point of collision, there was a low water crossing at the point of collision where water was running over the road, and the pavement was wet.Defendant contends that the weather conditions, the grade of the road, the wet pavement, and the moving water undeniably had an effect on defendant's automobile and his ability to control it, and that but for these conditions and factors the accident in question would not have occurred.Defendant contends that it is logical to assume that under such conditions the road was slick and muddy, that the braking action of an automobile was affected, and that the weather conditions caused some obstruction to the visibility of defendant as he approached the water crossing.However, there is absolutely no testimony that the rain, the gradual down grade, the presence of water at the low water crossing, or the wet pavement had any effect on defendant's automobile or defendant's ability to control his automobile upon the occasion in question.Defendant's first point of error is overruled.

By his second point of error defendant asserts that the trial court erred in failing to submit his requested special issue inquiring whether the collision in question was the result of an unavoidable accident.The Supreme Court in Dallas Railway &amp Terminal Co. v. Bailey, supra, defined unavoidable accident as an event not proximately caused by the negligence of any party to it.The issue of unavoidable accident exists only when there is evidence that something other than negligence of one of the parties caused the injuries complained of.Texas & P. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332(1946);Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790(1941).

Defendant relies on the same conditions and factors discussed under his first point of error as raising the issue of unavoidable accident, to-wit, that the collision occurred during a heavy rain, at a low water crossing, where water was running over the street, the pavement was wet, and that there was a gradual down grade on the street leading to the low water crossing.There is no testimony in the record that the street was slick or muddy, that defendant did not know of such factors and conditions, that defendant ever applied his brakes, that his car skidded on the wet street, that his view was impaired by the weather conditions, that the weather conditions had any adverse effect on his ability to control his automobile, or testimony of any kind that the conditions and factors above referred to placed defendant in such a position that he could not avoid the collision.It is of some significance that defendant, whose testimony might shed some light on whether the weather conditions adversely affected his driving or his ability to control his automobile, did not testify.American General Ins. Co. v. Nance, 60 S.W.2d 280(Tex.Civ.App.--Dallas1933, writ ref'd);23 Tex.Jur.2d, Evidence, § 106.

We are aware of court decisions to the effect that the issue of unavoidable accident may be raised by the existence of such conditions as rain, wet pavement, ice, or some other specific circumstance or cause other than the negligence of one of the parties.(SeeDallas Railway & Terminal Co. v. Bailey, supra, where there was testimony that there had been snow, sleet and freezing rain;Blasberg v. Cockerell, 254 S.W.2d 1012(Tex.Civ.App.--Amarillo 1952, no writ), where in addition to testimony that there was rain and wet pavement there was also testimony that the road was slick and that one of the cars skidded.)No set rules can be given to all cases by which it can be decided just when the issue of unavoidable accident is presented, and the facts of each case must be looked to in determining whether the question of unavoidable accident is presented.

The testimony of plaintiff, which is uncontroverted, was that as he approached the low water...