Brown v. Goldstein
| Decision Date | 13 February 1985 |
| Docket Number | No. C-3280,C-3280 |
| Parties | Dan BROWN, Petitioner, v. Irvin GOLDSTEIN et al., Respondents. |
| Court | Texas Supreme Court |
Buck C. Miller, Houston, for petitioner.
Harvill & Hardy, Pat McKenna, Houston, for respondents.
The issue in this appeal of an award in a personal injury case is whether requested defensive issues and instructions should have been given. Irvin Goldstein, as next friend of his children, Adele and Robert Goldstein, sued Dan Brown for personal injuries sustained by Adele and Robert in an automobile accident.
At the conclusion of a jury trial, the judge refused to submit requested instructions on unavoidable accident and sudden emergency and requested issues on contributory negligence. Based on answers to those issues that were submitted, judgment was rendered for the Goldsteins. The court of appeals, with one justice dissenting, affirmed that judgment, holding that the trial court's refusal to submit defendant's requested issues and instructions was proper. 678 S.W.2d 539. We disagree and therefore reverse the judgments of the courts below and remand the case to the trial court for a new trial.
At the time of the events in issue, Adele Goldstein, with her brother Robert as her passenger, was driving in the far left lane of Interstate Highway 610 (West Loop South) in Houston. Dan Brown was driving in the adjacent lane to her right. Brown testified that: (1) his car's electrical system failed and his engine, signal lights, and horn all ceased to work; (2) because the electrical system had failed, he had additional difficulties with his power steering and brakes; (3) he attempted to remove his car from the highway by waving his left hand out the window and pointing towards the emergency lane next to the center guardrail; (4) he saw Adele's car overtaking him in the lane to his left; (5) because of her car, he did not attempt to change lanes; and (6) Adele and Robert passed him unimpeded, and then she swerved into the emergency lane, lost control of her car and hit the guardrail. Other evidence was that Brown's car was found abandoned on the right side of West Loop South about one-fourth mile further down the road. The car was towed away by the police, and Brown did not return to the accident scene until everyone was gone.
Adele and Robert's testimony significantly differed from that of Brown. They testified that: (1) Brown approached them from behind, traveling at a faster speed; (2) his car had not completely passed them when he attempted to switch into their lane; (3) to avoid a collision Adele immediately swerved into the emergency lane and applied her brakes; and, (4) she then hit the guardrail which led to her personal injuries and those of Robert.
Brown complains, among other things, of the trial court's refusal to submit issues on Adele's contributory negligence. Specifically, Brown requested issues asking if Adele had failed to keep a proper lookout and had failed to apply her brakes properly.
Submission of special issues is governed by Tex.R.Civ.P. 279. Rule 279, long a part of the practice of Texas lawyers, requires attorneys to submit adequately prepared special issues in substantially correct form. In the event that those issues are the controlling issues, properly supported by the pleadings and the evidence, the trial court is to submit them to the jury. Hodges, Special Issue Submission in Texas § 2 (1959). That is to say that a trial court may not refuse to submit an issue merely because the evidence was insufficient to support a judgment. Guittard, Protecting the Record for Appeal, Tex. Trial Law.F. at 11-13 (1978). A judge may refuse to submit an issue only if no evidence exists to warrant its submission. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).
Brown's contributory negligence issues on improper lookout and failure to properly apply the brakes were submitted to the trial court in substantially correct form. Nevertheless, the court of appeals stated that "under the facts of this case Adele did not owe a duty to appellant [Brown] to let him enter her lane of traffic." 678 S.W.2d at 542 (emphasis in original). The appeals court determined that if Adele owed no duty to Brown, then she could not be negligent in failing to keep a proper lookout. Thus, the court of appeals reasoned that the trial court did not err in submitting the issue. Again, we disagree. See DeWinne v. Allen, 154 Tex. 316, 320, 277 S.W.2d 95, 98 (1955). See also Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958).
Here the evidence is conflicting. Brown testified that he signaled with his hand as Adele approached him. At one point Adele testified that she entered the emergency lane to avoid being hit, and at another point testified that she did not know if Brown ever entered her lane. In addition, it is unclear from the evidence if Adele was cognizant of the guardrail until after she hit it. The Goldsteins, during oral argument,...
To continue reading
Request your trial
-
Elbaor v. Smith
...determination"). A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985) (where evidence was conflicting, it is error to refuse submission of contributory negligence issues); Garza v. Alviar, 395 S.......
-
Maritime Overseas Corp. v. Ellis
...objection to the factual insufficiency of the evidence cannot preclude submission to the jury of pleaded claims, Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985), and thus has essentially no Even if evidence is admitted without objection, it may be insufficient to support a judgment. This......
-
Pitman v. Lightfoot
...All parties are entitled to have controlling issues, raised by the pleadings and evidence, submitted to the jury. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985). A controlling issue is one which requires a factual determination to render judgment in the case. Employers Casualty Co. v. B......
-
Pitts & Collard, L.L.P. v. Schechter
...and ignore all evidence to the contrary. See id. Conflicting evidence presents a fact question for the jury. See Brown v. Goldstein, 685 S.W.2d 640, 641–42 (Tex.1985). A joint venture is similar to a partnership, but it is ordinarily limited to a particular transaction or enterprise. See Ad......