C. & R. Transport, Inc. v. Campbell, A--11076

• Citation: 406 S.W.2d 191
• Decision Date: 13 July 1966
• Docket Number: No. A--11076,A--11076
• Court: Texas Supreme Court
• Parties: C. & R. TRANSPORT, INC., et al., Petitioners, v. Brinkley CAMPBELL, Respondent.

Page 191

406 S.W.2d 191

C. & R. TRANSPORT, INC., et al., Petitioners, v. Brinkley CAMPBELL, Respondent.

No. A--11076.

Supreme Court of Texas.

July 13, 1966.

Rehearing Denied Oct. 5, 1966.

Kenley & Boyland, Longview, for petitioners.

Gordon R. Wellborn, Rex Houston, Henderson, Fred Erisman, Longview, for respondent.

CALVERT, Chief Justice.

The trial court rendered judgment awarding plaintiff, Brinkley Campbell, $13,507.84 for personal injuries and property damage sustained when his pickup truck was hit from the rear by a truck owned by defendant, C. & R. Transport, Inc., and driven by James H. Robbins. The Court of Civil Appeals affirmed. 393 S.W.2d 727. We reverse the judgments of the courts below and remand the cause of the trial court for a new trial.

Both vehicles were traveling in an easterly direction on U.S. Highway 80 before the collision. The case was tried to a jury, and several special issues were submitted inquiring into the conduct of the parties preceding the collision. In response to certain of the special issues, the jury found from a preponderance of the evidence that (1) 'at the time, place, and on the occasion in question' Robbins failed to keep a proper lookout, which (1A) was a proximate cause of the collision, and (14) 'at the time, place, and on the occasion in question' Campbell 'failed to keep a proper lookout' which (14A) was a proximate cause of the collision. The jury failed or refused to find that either Robbins or Campbell was guilty of any other act or omission which was negligence and a proximate cause of the collision. The jury's answers to Special Issues Nos. 14 and 14A, if supported by evidence of probative force, would normally have required a judgment that plaintiff take nothing; but the trial court, on plaintiff's motion, disregarded the jury's answers to the issues for the recited reason that they had no support in the evidence, and rendered judgment for the plaintiff.

The trial court's action in disregarding the jury's answers to issues 14 and 14A on the ground that they had no support in the evidence was attacked by the defendant by proper points of error in the Court of Civil Appeals. That court approved the trial court's action on a somewhat different theory; it held that the answers to the issues were properly disregarded because of the jury's answer to Special Issue No. 15. Both theories for disregarding the answers are challenged by proper points of error in this Court. The trial court's theory will be examined first. Its examination requires a brief review of relevant evidence.

Highway 80 is a four-lane highway which lies in an easterly and westerly direction, with two lanes for east-bound and two lanes for west-bound traffic. The collision occurred at approximately 11,00 o'clock, a.m., on a clear dry day.

The plaintiff testified that he was driving in the south lane of east-bound traffic at a speed of about 35 miles per hour when 'all at once there was an explosion;' that the next thing he knew he was in the hospital; that at no time was his vehicle on the shoulder of the highway. The 'explosion' to which the plaintiff referred occurred, as established by the testimony of Robbins, when the pickup was struck from the rear by defendant's truck. If that were all of the testimony concerning the collision, there would be no evidence supporting the jury's answers to Special Issues 14 and 14A. The evidence would not support a finding that the plaintiff owed a duty to look to the rear for approaching vehicular traffic which was breached by his failure to do so, or that his failure to look to his rear was a proximate cause of the collision. See Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481 (1961), writ refused, no reversible error; Le Sage v Smith, Tex.Civ.App., 145 S.W.2d 308 (1940), writ dismissed.

But the testimony of the plaintiff is not the only testimony bearing on the issues. To test whether the trial court erred in holding that the answers to the issues have no support in the evidence, we must consider only the evidence and the reasonable inferences therefrom which support the answers. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363 (1957); Cartwright v Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). This brings us to a summary of the testimony of Robbins, driver of defendant's truck.

Robbins testified that while he was traveling in the south lane of east-bound traffic, he reached the crest of a hill in the highway and started down-grade some 450 or 500 feet from the place of collision; that he recalled seeing the plaintiff's vehicle for the first time when he was within 150 to 200 feet of it, at which time the vehicle was being driven from the improved shoulder into the south lane of the highway at a slight angle, with the right rear wheel still on the shoulder. He testified further that he applied his brakes and tried to miss the pickup by pulling in the direction of the north lane of east-bound traffic but his the left-rear corner of the vehicle.

We hold that the testimony of Robbins supports the jury's answers to issues 14 and 14A. From the testimony the jury could reasonably have inferred that the plaintiff's pickup had been on the shoulder of the highway and was being driven by the plaintiff from the shoulder into the south lane of traffic without looking to see if vehicular traffic was approaching from the west in the south lane; that a reasonably prudent person exercising ordinary care for his own safety and the safety of others using the highway would have looked to the west before driving from the shoulder into the traffic lanes; that had the plaintiff done so he could have seen the approaching truck and have avoided the collision by waiting until the way was clear.

We now consider the theory on which the Court of Civil Appeals held that the answers to issues 14 and 14A were properly disregarded.

Special Issue No. 15 is the first of a cluster of four issues designed to submit a separate act of negligence on the part of the plaintiff. The issue and the jury's answer thereto are as follows:

'Do you find from a preponderance of the evidence that immediately prior to the collision in question, the Plaintiff, Brinkley Campbell, drove his pickup truck from the shoulder of the highway onto the highway?

'Answer 'yes' or 'no'.

'ANSWER: No.'

Special Issues Nos. 15A, 15B and 15C were the other issues in the cluster. 15A inquired whether Campbell drove his pickup from the shoulder onto the highway when it could not be done in safety; 15B inquired whether such conduct was negligence, and 15C inquired whether such negligence was a proximate cause of the collision. None of these issues was answered because the duty of the jury to answer them was by the court's instructions conditioned on an affirmative answer to Special Issue No. 15.

The Court of Appeals treated the negative answer to issue 15 as a finding by the jury that the plaintiff Did not ¹ drive his pickup from the shoulder of the highway onto the highway immediately prior to the collision. That is a misinterpretation of the issue and the answer. Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff Did drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact. See Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564, 565, holding approved, Ashley v. Usher, Tex.Sup., 384 S.W.2d 696, 697 (1964). The Court also erred in holding that the answers to issues 14 and 14A were correctly disregarded because of the answer to issue 15. A jury's answer to a special issue may be disregarded only when it has no support in the evidence or when the issue is immaterial. Rule 301, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice, §§ 17.30--17.32. McDonald correctly states that '(a) special issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings,' § 17.31; but he is equally correct when he states that '* * * if a finding upon the issue claimed to be immaterial could if made, or does as made, create a fatal conflict with other findings Or otherwise affect the legal significance of the verdict and hence the judgment to be entered, The issue is material and must not be ignored.' § 17.31. A trial court thus has no authority because of other apparently conflicting jury findings to disregard a finding with legal significance which has support in the evidence. Moreover, the court may not look to answers to other issues for the purpose of determining whether an answer to a particular issue has support in the evidence. T. & N.O.R. Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848 (1932), writ refused; Davis v. Estes, Tex.Com.App., 44 S.W.2d 952 (1932); Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744 (1929), no writ history.

What we have here is apparently conflicting findings, although neither party so contends or has sought a mistrial on that ground. Both parties seek outright victory. As indicated, plaintiff has thus far successfully sought to have the answers to issues 14 and 14A disregarded and judgment rendered in his favor. Defendant has consistently asserted, and asserts here, that the conflict is apparent only, and that the findings can be reconciled by proper rules of construction. We agree with the defendant.

The trial judge defined the term 'proper lookout' in his charge to the jury in usual terms, as follows: 'You are instructed that by 'proper lookout' as used in this issue is meant such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances.' When the jury found from a preponderance of the evidence that 'at the time, place, and on the occasion in question' the plaintiff 'failed to keep a proper lookout,' it necessarily...