Casey v. Barkley

• Decision Date: 29 August 1975
• Docket Number: No. 952,952
• Citation: 527 S.W.2d 256
• Parties: James J. CASEY et al., Appellants, v. Ernest BARKLEY, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 256

527 S.W.2d 256

James J. CASEY et al., Appellants, v. Ernest BARKLEY, Jr., et al., Appellees.

No. 952.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1975.

Rehearing Denied Sept. 18, 1975.

Harry F. Maddin, Allison, Maddin, White & Brin, Corpus Christi, Merrill W. Russell, Jr., Greenwood & Russell, Harlingen, for appellants.

Finley L. Edmonds, Meredith & Donnell, Corpus Christi, for appellees.

OPINION

NYE, Chief Justice.

This is an intersectional collision case. James J. Casey brought suit to recover damages allegedly sustained by him as a result of a right angle collision between the truck he was driving and a truck and tank trailer owned by Barkley Feed and Seed Company and operated by Maximilliano Garza. Casey's truck was leased from Rollins Leasing Company. Following a jury trial in which the jury found primary and contributory negligence, the trial court entered a take-nothing judgment in favor of the defendants. Plaintiff Casey has duly perfected his appeal to this Court.

The collision occurred at the intersection of Highway 77 and Farm Road 70 between Robstown and Kingsville. Highway 77 is a divided highway consisting of two lanes in each direction. At the point of intersection of Farm Road 70, the roadway widens to four lanes to accommodate vehicles turning off and on Highway 77. Casey was driving his truck north on Highway 77. The speed limit at that time was 65 miles per hour. Garza was driving his truck east on Farm Road 70. As he was approaching Highway 77 northbound intersection, he was faced with a stop sign and traffic control device located over the center of the intersection. It contained a flashing red light for Garza and an amber flashing light on Highway 77 facing Casey.

Casey testified that he left San Benito, Texas, in the lower Rio Grande Valley en route to Jacksonville, Florida, carrying a cargo of 36,000 pounds of 'swinging meat'. He testified that his truck was governed at 58 miles per hour in tenth gear and that this was the maximum speed that the truck could attain. He testified that as he approached the scene of the accident, he was driving in ninth gear which would give him a maximum speed of 48 miles per hour. Casey testified that he first saw Garza at a point when Garza was crossing the southbound portion of Highway 77. The next time he saw Garza, he was approaching the intersection preparing to stop. He testified that for the next second or two, his attention was directed to the right to clear traffic from that direction. As he approached the intersection, he heard the sound of 'somebody jamming a gear'. Casey's truck struck Garza's tank-truck on the rear right hand side as Garza was crossing through the intersection causing extensive damages and injuries.

Garza testified that as he was crossing the median between the two highway lanes, he was traveling at a speed of five or six miles per hour. He indicated that he looked to his right before he got to the stop sign. Garza testified that when he saw Casey, he thought Casey was pretty far back, but traveling better than sixty miles per hour. Garza then 'rolled through the stop sign' into the intersection gaining speed as he went through. He stated that he was traveling 5 or 6 miles an hour when the accident occurred. The parties for both sides attempted to reconstruct the accident by the use of plats, photographs, diagrams, and expert testimony. The evidence shows that there were no skid marks from either vehicle leading up to the point of impact, but only gouge marks in the asphalt at the point of impact.

Casey alleged that Garza was guilty of certain acts of negligence, each of which was the proximate cause of plaintiff's damages and injuries. In addition, Casey alleged that Garza discovered and realized that Casey was in a perilous position at a time in which Garza could have avoided the occurrence in question by the exercise of ordinary care, which he failed to do. The trial court refused Casey's issues on discovered peril.

The jury found that Garza failed to keep a proper lookout; failed to yield to the Casey vehicle; failed ot stop before entering the intersection; and that Garza failed to make such application of the brakes as a person using ordinary case would have made, each of which was found to be the proximate cause of the occurrence in question. In addition, however, the jury found that Casey was contributorily negligent. It found that Casey failed to keep a proper lookout; was driving at a greater rate of speed than a person using ordinary care would have driven; and failed to make proper application of the brakes, all of which was a proximate cause of the occurrence in question. The trial court accordingly entered a judgment that plaintiff take nothing. Casey has duly perfected his appeal from that judgment to this Court bringing forward five points of error.

In appellants' first point of error, he contends that the trial court erred in refusing to submit a cluster of special issues which were his requested issues on discovered peril, for the reason that such issues were raised by evidence and should have been submitted to the jury. This necessarily raises a point of no evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.Sup.1964); Rule 279, T.R.C.P. (1967). Whether a particular issue should be submitted is determined by the application of tests identical with those employed in determining whether an instructed verdict should be given. Imperial Insurance Company v. Ellington, 498 S.W.2d 368 (Tex.Civ.App.--San Antonio 1973, no writ); 3 McDonald, Texas Civil Practice § 12.08C (1970). This requires us to consider only the evidence and the inferences that may be reasonably drawn therefrom that are favorable to the appellants' issues on discovered peril and to disregard all of the evidence and inferences to the contrary.

The basis for recovery in a discovered peril case rests upon humane principals and public policy and not upon the negligence or dereliction of duty on the part of the injured plaintiff. The rule of law which allows recovery of damages under this doctrine is exacting. It is necessary for the plaintiff to prove: 1) that the defendant actually discovered and realized the perilous position of the plaintiff; and 2) that the discovered realization by the defendant was in time to have aovided the collision by the exercise of ordinary care and by the use of all the means at his command, consistent with his own safety. The burden is upon the plaintiff to establish that the driver of the defendants' vehicle was guilty of violating each and all of these humane principles. The quantum of proof required to entitle a plaintiff to have the discovered peril issues submitted is evidence of such facts and circumstances, together with all of the reasonable inferences therefrom, as would constitute some evidence of probative force of their existence. Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.Sup.1970); Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962). Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952). It is not sufficient that defendant could have or should have realized the perilous position of the plaintiff, but rather, plaintiff must show actual discovery and realization by defendant in time to avoid the collision. Gentry v. Southern Pacific Company, supra; Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962); Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961); Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967 (1946).

The evidence is clear to us that after Garza saw Casey, he proceeded into the intersection, inferentially confident that he had time to cross the highway. Garza stated that he never looked back. At the only time that Garza saw Casey's truck, Casey was not in a position of peril. When the facts later developed to where Casey was in a position of peril, the Garza truck was already crossing the intersection. Garza was not looking at Casey or contemplating a collision. Appellant argues that at one point in the testimony, Garza answered a hypothetical question favorable to appellants' contention that he discovered plaintiff's perilous position. The question put to Garza was: 'How long it would take a truck going at 60 miles per hour, to stop?' Garza stated: 'I don't think he got enough chance to stop.' The asserted facts that if Garza had been looking, and if he had been paying attention, and if he had realized the danger, he could have stopped and avoided the accident, do not establish that necessary quantum of proof that Garza actually discovered Casey, realized his perilous position at a time in which he could have averted the accident. We have considered all of the evidence that could be considered favorable to the appellants' contentions and find that there is no evidence of each and every element of all of the discovered peril issues that are necessary to submit to the jury. Appellants' first point of error is overruled.

Appellants, in their second point of error, complain that the trial court erred in allowing the defendant to introduce speculative testimony based upon projected time sequences and speeds of the two trucks in question, without any evidence to support such hypothetical opinion testimony. More specifically, appellants contend that Mr. Flanagan (an expert witness), in making his calculations, assumed the fact that the Casey vehicle at one point was traveling 70 miles per hour down U.S. Highway 77; that the Barkley vehicle was moving two miles per hour through the stop sign and gradually accelerated from two to six miles per hour with an average speed of four miles per hour; and that the coefficient of friction of the highway at the scene of the accident was .8, for all of which there was no evidence to support the question. First, as to appellants' complaint...