Brinegar v. Porterfield

• Citation: 705 S.W.2d 236
• Decision Date: 07 January 1986
• Docket Number: No. 9314,9314
• Parties: Lorene BRINEGAR, Appellant, v. Janice Williams PORTERFIELD, Administratrix of the Estate of Walter C. Williams, Deceased, Appellee.
• Court: Court of Appeals of Texas

Page 236

705 S.W.2d 236

Lorene BRINEGAR, Appellant, v. Janice Williams PORTERFIELD, Administratrix of the Estate of Walter C. Williams, Deceased, Appellee.

No. 9314.

Court of Appeals of Texas Texarkana.

Jan. 7, 1986.

Donald B. Friedman, Friedman & Hooper, Texarkana, for appellant.

James Haltom, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellee.

GRANT, Justice.

Lorene Brinegar appeals from an order granting a motion for instructed verdict. She sued the estate of Walter Williams to recover damages for personal injuries she sustained in a one-vehicle accident in which she was a passenger and the decedent Williams was the driver. At the conclusion of the plaintiff's case in chief, the trial court withdrew the case from the jury and granted the defendant's motion for instructed verdict.

The incident occurred on October 30, 1982, on Highway 59, one mile south of Domino, Texas, at approximately 3:00 a.m. The couple was returning home to Atlanta after an evening of dancing at the Pines Ballroom in Texarkana, Arkansas. Brinegar was asleep when the vehicle left the road and rolled over, killing Williams and seriously injuring her. There were no known third party witnesses.

Brinegar raises two points of error: (1) that the instructed verdict was improper because she presented sufficient evidence to raise material questions of fact for the jury regarding specific acts of negligence by Williams; (2) that the granting of the defendant's motion for instructed verdict was improper, because there was sufficient circumstantial evidence to support a finding of Williams' negligence under the theory of res ipsa loquitur.

On an appeal from an instructed verdict, we view all the evidence and inferences therefrom in the light most favorable to the appellant. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). When reasonable minds may differ as to the truth of the controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948). We must indulge every proper inference from the evidence against the trial court's action in withdrawing the case from the jury. Echols v. Wells, 510 S.W.2d 916 (Tex.1974). With these guidelines in mind, we turn to the facts developed during the trial.

Department of Public Safety Officer Larry Aycock testified that his investigation revealed no skid marks, which was an indication to him that Williams had not hit his brakes. He said that there had been no rain and the pavement was dry, but there had been a heavy fog in the early morning hours. He found no evidence of any external factor or mechanical failure which might have caused the automobile to leave the roadway. According to Aycock, the automobile had travelled about 100 feet after leaving the roadway, and the only damage was caused by it striking the ground.

Brinegar testified that Williams had been awake since approximately 5:30 a.m. of the morning before the accident (approximately twenty-two hours). She further testified that she had driven the car many times before, that it appeared to function properly, and that Williams carefully maintained all of his vehicles. She also stated that Williams was in excellent health prior to the accident, and that he was familiar with the road because he travelled that route to and from his place of employment.

Brinegar went to trial on her first amended original petition which pled res ipsa loquitur and specific allegations that Williams was negligent in failing to properly control his vehicle, in failing to timely apply his brakes, in failing to keep a proper lookout, and in driving at an excessive and dangerous rate of speed under the circumstances then and there existing.

The order granting the motion for instructed verdict entered on June 15, 1984, indicates that the motion was granted because the plaintiff failed by her testimony to show any negligence and because there was insufficient evidence of negligence.

The courts of this State have repeatedly held that it is error to instruct a verdict when the evidence raises any material issue. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952). If the record reflects any testimony of probative force in favor of the losing party, the granting of a motion for instructed verdict is improper. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943). Before the trial court is authorized to grant an instructed verdict, it must appear that there is no evidence raising a jury issue. Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ). The issue of sufficiency or weight of the evidence is not raised by an instructed verdict or a motion for judgment non obstante veredicto, but only by questions of "no evidence." Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.). A judge may refuse to submit an issue only if no evidence exists to warrant its submission. Brown v. Goldstein, 685 S.W.2d 640 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Therefore, we must construe the court's granting of an instructed verdict in this case to be on the basis that there was no evidence to warrant submission of the issues to the jury.

An often cited legal axiom is that the mere happening of an accident is no evidence of negligence. For example, the case of Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (1942), holds that where no evidence was presented to show that the defendant's truck crossed the center line and caused the collision, no evidence existed to establish negligence. One of the earliest Texas cases citing this principle is Davis v. Castile, 257 S.W. 870 (Tex.Comm'n App.1924, holding approved). This case involved a plaintiff who had received a broken leg when a stack of lumber fell while he was repairing a railroad car. There was no evidence to show that the lumber was improperly stacked or what caused the stack of lumber to topple. The plaintiff and another worker had been moving some of the lumber in the course of their work. The court in that case quoted the following language from R.C.L. vol. 4, p. 1344:

The rule is fundamental that the mere happening of an accident affords no legal grounds for a claim for damages, unless the claim can be predicated upon that class of accidents, governed by the rule of res ipsa loquitur, which per se raises a presumption of negligence.

While the naked fact that an accident has happened may be no evidence of negligence, the character of the accident, and the circumstances of proof attending it, may be such as to lead reasonably to the belief that without negligence it would not have occurred. Martin v. Commercial Standard Insurance Company, 350 S.W.2d 664 (Tex.Civ.App.--Beaumont 1961), rev'd on other grounds, 363 S.W.2d 228 (Tex.1962).

We cannot say that negligence cannot exist without eye witnesses. Physical facts and circumstances can evince negligence. In reviewing the evidence, we must look at the totality of the known circumstances. We cannot speculate that some unknown intervening factors existed which were not raised by the evidence. Any evidence has probative value which contributes toward the proof of an issue. A single factor standing alone may be insufficient, but when joined by other factors constituting a significant whole, the combination can justify a conclusion.

No Texas cases have been found with analogous fact situations. Therefore, we have looked for similar cases in other jurisdictions.

In the case of Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471 (1935), an automobile ran into a ditch and against an embankment and turned over, killing the passenger and injuring the defendant. In that case, the court said:

The inference of negligence is from the fact that the automobile is driven in such manner and lack of control that it leaves the proper part of the highway safe for travel and encounters or creates dangers to persons whether such persons are occupying the automobile or are near or along the highway.... The inference of the driver's negligence from his driving the car under his control off the traveled highway, thereby encountering or creating dangers, is not dependent on whether the person injured as a direct result thereof is in the automobile or in its pathway.

In this decision, the court cited with approval from Huddy Encyclopedia of Automobile Law, the following:

The doctrine of res ipsa loquitur applies where an automobile runs wild, overturns, or runs off the roadway and strikes a person on the sidewalk, or collides with a tree, with a pole, or with a building.

The Supreme Court of Missouri in the case of Lindsey v. Williams, 260 S.W.2d 472 (Mo.1953), cert. denied, 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063 (1954), held that the plaintiffs made a submissible case under the res ipsa loquitur doctrine when the evidence showed that the automobile owned by the defendant and operated by a third party under defendant's immediate supervision left the highway and collided with a tree.

In the case of Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001 (1934), the plaintiff was a pedestrian who was injured when the defendant's automobile left the street and ran onto a sidewalk. In that case, the court said that, "Surely such an occurrence would justify an inference of negligence."

In Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968), the occupants of an automobile were killed when the automobile left the highway and struck a poplar tree. The court said:

It is generally accepted that an automobile which has been traveling on the highway, following "the thread of the road," does not suddenly leave it if the driver uses proper care. Such an occurrence is an unusual event when the one in control is keeping a proper lookout...