Browning v. Paiz

• Citation: 586 S.W.2d 670
• Decision Date: 30 August 1979
• Docket Number: No. 1403,1403
• Parties: Anthony BROWNING, Appellant, v. Federico PAIZ and Hartford Insurance Group, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 670

586 S.W.2d 670

Anthony BROWNING, Appellant, v. Federico PAIZ and Hartford Insurance Group, Appellees.

No. 1403.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 30, 1979.

Rehearing Denied Sept. 21, 1979.

Jack K. Dahlberg, Jr., Corpus Christi, for appellant.

Wm. R. Edwards, Edwards & Perry, Corpus Christi, for appellees.

OPINION

NYE, Chief Justice.

This is a personal injury case arising out of a truck collision at an uncontrolled intersection in Tynan, Texas. Federico Paiz (appellee herein) sued Anthony Browning (appellant herein) for damages resulting from a collision between the two trucks that the parties were driving. In response to special issues, the jury found Browning's negligence was the proximate cause of the occurrence in question. The jury did not find Paiz guilty of contributory negligence. As a result of the jury findings, the trial court entered a judgment awarding Paiz damages totaling $280,500.00. The trial court's judgment also included an award of $3,250.00 to the intervenor, Hartford Insurance Group, for damages to Paiz's truck. ¹ Browning appeals.

The collision in question occurred in July 1973, at the intersection of FM 796 and a cross street in Tynan, Texas. Appellant Browning was operating a 21/2-ton, 3-axle bobtail truck owned by his employer, A. R. Johnson, and occupied by himself and a Kitty Johnson, the daughter of his employer. Browning was traveling in an easterly direction on a cross street. At the same time, Appellee Paiz, traveling north, approached the intersection from Browning's right on FM 796. The road Paiz was on was commonly known in Tynan as "the main highway." Paiz was alone in his truck, a 2-ton, 1972 Ford "10-wheeler." Browning entered the intersection of the cross street and FM 796 intending to proceed across the highway in an easterly direction. When the collision occurred, the trucks were at right angles to each other. Paiz's truck, unable to stop, struck the right side of Browning's truck near the rear wheels. Browning's truck traveled a short distance and rolled over, landing on its left side on the northeast corner of the intersection.

In response to special issues, the jury found in relevant part as follows: 1) that when Browning was approaching the intersection in question, Paiz's vehicle was approaching the intersection in such proximity as to be a hazard; 2) that Browning's failure to yield to the vehicle driven by Paiz was a proximate cause of the occurrence in question; 3) that the sum of $10,000.00 represented reasonable, necessary future medical expenses; 4) that the sum of $270,400.00 represented a reasonable sum necessary to compensate Paiz for loss of past and future wage earning capacities, past and future physical pain, past and future mental anguish, and past and future loss of physical capacity, other than the capacity to work and earn money. The jury did not find that Paiz was contributorily negligent.

In point of error one, Appellant Browning states that the trial court erred in failing to hold that Appellee Paiz was negligent as a matter of law. The appellant contends that Paiz had a clear view of Appellant's truck at a time when he could have avoided the collision if he had taken some action. Appellant contends that the evidence establishes conclusively that Paiz did nothing to avoid the accident but "merely dropped to his seat" and that his failure to act establishes negligence as a matter of law.

The jury returned negative answers to the special issues which inquired whether Paiz failed to keep such a lookout as a person using ordinary care would have kept and whether Paiz was driving at a greater rate of speed than a person using ordinary care would have driven. The proximate cause issues were conditionally submitted upon affirmative answers to the negligence issues. Because Appellant did not object to such conditional submission, he has waived the jury findings upon these issues unless the evidence conclusively establishes the affirmative answer to these issues as a matter of law. Little Rock Manufacturing Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (Tex.Sup.1949). See Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup.1963). Therefore, in order to sustain Appellant's point of error one, this Court must find that the evidence conclusively established, as a matter of law, that Paiz was negligent as plead (special issues 3 & 5) and that such negligence was the proximate cause of the collision (special issues 4 & 6). See Calvert, "No Evidence" and "Insufficient Evidence" points of error, 38 Texas L.Rev. 359 (1960).

We need not reach the second inquiry (concerning proximate cause) because we are of the opinion that there is ample evidence in the record from which the jury could reasonably conclude that Paiz was not contributorily negligent as to either of the two grounds of negligence submitted to the jury. There is ample testimony in the record, including the testimony of Browning himself, which supports the jury's negative answers to the contributory negligence special issues.

The virtually undisputed evidence established that, at the time and place of the accident in question, the lawful speed limit on FM 796 was 60 miles per hour for trucks like the one driven by Paiz. Browning was approaching the FM 796 intersection from the left-hand side of Paiz. The collision in question occurred during the daylight hours and there were no visual handicaps created by any adverse conditions. The cross road in question on which Browning was proceeding in an easterly direction, was a road used by loaded grain trucks to obtain access to a weight station.

Browning testified that, as he approached the intersection, "the only operating vehicle on FM 796 anyplace close to the intersection where this collision occurred was the truck being driven by Federico Paiz. . . ." Browning stated that there were several loaded grain trucks which were parked facing in a westerly direction along the side of the road on which he was proceeding in an easterly direction. He explained that these trucks were waiting in lines to be weighed and that there were one or two trucks on his left side (north), and four or five such trucks on his right side (south). Jo Ann Holubec, a resident of Tynan, who lived in a home near the intersection in question, testified in substance, that shortly after the accident, she observed these trucks parked to the side of the cross road, "right up to the road FM 796." She stated that the back end of the first truck on the cross street was approximately 5 or 10 feet away from the intersection of this cross street as it crosses FM 796. Browning's passenger, Kitty Johnson, described the parked trucks as being high-sided bobtails like Browning's, with sides which were higher than the side windows on Browning's truck. She stated that she was seated approximately in the middle of the front bench seat of Browning's truck and that it was necessary for the cab of Browning's truck to pass the back of the last parked truck before it would be possible to see in a southerly direction to look for north-bound vehicles on FM 796.

Browning stated that, immediately prior to the collision in question, he had left a load of grain at the elevator and was proceeding on the cross street on his way back to the grain fields. He stated that he was traveling at about 2 to 3 miles per hour in third low gear as he passed through the area where the trucks were parked. As he "got out of the trucks," he "accelerated to approximately 5 miles an hour and then when I got to the intersection I did slow down there." He stated that he continued, without stopping, looked to his right and then to his left, and seeing nothing, entered the intersection without stopping, accelerated to approximately 8 or 9 miles per hour and then shifted gears as he continued to accelerate to a rate of speed of between 12 and 15 miles per hour at the time of the collision. Browning stated that as he slowed down just prior to the time he entered the intersection, he could have "stopped on a dime."

As Paiz was approaching the intersection, he was traveling approximately 35 to 45 miles per hour and was decelerating because, according to his testimony, he planned to pass the intersection in question and then turn right on state highway 359 toward Skidmore, Texas. Paiz saw Browning's truck when it was "2 or 3 feet on top of the road to my left, about 10 feet." He stated that, although he moved as fast as he could to get on his brakes, there was not enough time to stop before the collision occurred. Paiz's skid marks were measured by the investigating highway patrolman.

Browning testified that he saw Paiz's truck for the first time through his right window just momentarily before the collision. He stated that he had just shifted gears; his truck was located in such a position that his seat was just over the center line of FM 796; and that he continued to accelerate throughout the collision. Browning testified that the right rear wheel of his truck rolled over the front portion of the Paiz truck. This caused his vehicle to overturn.

Browning admitted in substance that: at his reduced speed (approximately 21/2 miles per hour) prior to accelerating upon entry into the intersection, no one approaching the intersection in a northerly direction on FM 796 would have been able to know that he was not going to yield the right of way; that his subsequent acceleration could also have indicated a right turn to such an oncoming vehicle; that the mere fact that he accelerated would not necessarily tell another person that he planned to go straight across FM 796, rather than turn right; and that the highway patrolman who investigated the accident issued him a ticket for failing to yield the right-of-way, to which he plead guilty and paid a fine.

It is well settled that although a person is not bound to anticipate negligent or unlawful conduct on the part of another, he is not entitled to close his eyes...