Charles T. Picton Lumber Co. v. Redden, 523

• Decision Date: 29 January 1970
• Docket Number: No. 523,523
• Parties: CHARLES T. PICTON LUMBER COMPANY, Appellant, v. Marvin Ray REDDEN et al., Appellees.
• Court: Texas Court of Appeals

Page 713

452 S.W.2d 713

CHARLES T. PICTON LUMBER COMPANY, Appellant, v. Marvin Ray REDDEN et al., Appellees.

No. 523.

Court of Civil Appeals of Texas,

Corpus Christi.

Jan. 29, 1970.

Rehearing Denied Feb. 19, 1970.

Keys, Russell, Watson & Seaman, James C. Watson, Corpus Christi, for appellant.

E. B. Grimes, Robstown, Utter & Chase, Norman L. Utter, Corpus Christi, for appellees.

OPINION

GREEN, Chief Justice.

This is a personal injury suit. Appellees Marvin Phillip (Bill) Redden individually and as next friend of his son Marvin Ray Redden recovered a judgment against appellant Charles T. Picton Lumber Company for $128,629.69 for damages to the son proximately caused by a collision between appellant's truck-trailer and a farm tractor being operated by Marvin Ray. After its amended motion for new trial was overruled appellant perfected its appeal to this Court. Since Marvin Ray was a minor at the time of the accident his father was a party to the suit. However, unless otherwise indicated, the term 'appellee' as hereafter used in connection with the factual situation will refer only to the son Marvin Ray Redden.

The collision occurred on a clear morning on a straight stretch of Farm to Market Road No. 624 in Nueces County, Texas. (See sketch). The road ran generally east and west, and had two paved lanes for traffic, each 12 feet wide, with an improved shoulder on each side. Appellant's truck-trailer combination was a large hydraulic dump truck and trailer; it was travelling in a westerly direction, and was empty. Appellee lived three-tenths of a mile east of the site of the collision; he had commenced his trip on the farm tractor at his home and without any attachments to his tractor, and was also travelling on 624 in a westerly direction ahead of the truck. The accident occurred when the truck driver attempted to pass the farm tractor to its left as appellee was crossing or had crossed the south lane of the pavement to enter a caliche field road. It occurred on the southern shoulder of the highway as it joined with the caliche road. (See on sketch.) As the truck driver was attempting to avoid the collision, the truck and trailer separate and jackknifed, the trailer running into the truck, and the side of the truck swung against the tractor with sufficient force to practically demolish it.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The jury found that appellee's failure to give a continuous signal of his intention to turn left during at least the last hundred feet of travel of the farm tractor before turning was a proximate cause of the collision, and in answer to other issues exonerated appellee of improper lookout and of turning when it was not safe to do so. The jury found the truck driver at fault on lookout, failure to slow down, failure to stay on his right side of the road, failure to sound his horn, and attempting to pass when traffic in the opposite direction was a hazard. The jury also found (Issue No. 12) that immediately prior to the collision the truck driver could not have avoided the accident by turning his truck to the right. All of the standard issues to establish Discovered peril were answered against appellant, and in view of the finding of contributory negligence of appellee, the judgment was based on such answers of discovered peril.

By its Points of Error Nos. 1, 2, and 4, appellant raises the proposition of 'no evidence' to warrant submitting to the jury the special issues on discovered peril (Nos. 21--26, inclusive). Point No. 3 is to the effect that the answers to such discovered peril issues were against the overwhelming preponderance of the evidence.

When the contention of 'no evidence' is made, as in the first, second and fourth points, a question of law is presented. In deciding that question the appellate court must consider only the evidence and the inferences therefrom tending to support the finding, and disregard all evidence and inferences to the contrary. On the other hand, a point raising factual insufficiency of the evidence to support certain material findings means that the evidence supporting such finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside the a new trial ordered. The Court of Civil Appeals in deciding such point is required to consider all of the evidence. Garza v. Alviar, Tex.Sup.Ct., 395 S.W.2d 821, 823. Since both legal and factual insufficiency points are presented, we shall discuss what we consider to be the material evidence concerning the discovered peril issues; however, in deciding the questions presented we shall be guided by the rules applicable to each point, including the rule that in passing upon 'no evidence' points, we may not consider or give weight to other jury findings. Enloe v. Barfield, Tex.Sup.Ct., 422 S.W.2d 905, 907; C. & R. Transport, Inc. v. Campbell, Tex.Sup.Ct ., 406 S.W.2d 191, 194.

The evidence relative to these issues was given by three eyewitnesses to the accident, appellee Marvin Ray Redden, T. E. Minyard, appellant's truck driver, and Pete Ramos, the driver of an east bound truck. In addition, there was the evidence of plaintiff's expert witness, and a large number of photographs of the vehicles and the roadway at the site of the collision.

Marvin Ray testified that he entered F. M. Road 624 at the Redden house and proceeded west with the intention of turning off to the south at a caliche field road about three-tenths of a mile to the west to enter the field there and do some discing. After he had turned into No. 624, he traveled in the center of his right hand lane of the pavement at about 14 m.p.h. until he commenced a gradual angling turn to his left about 120 to 150 feet from the caliche road . He never at any time drove on the right hand shoulder of No. 624. No car passed him going west from the time he got on the highway until the accident. Just before he started making his angling turn he looked back to check traffic. He saw appellant's truck--he did not recollect how far behind him--in the center of the right hand lane, the same one that he was then in. When he started his angling left turn the truck had not gone over the center line, and there was no indication to him that the truck driver intended to pass. He slowed down his speed to about 10 m.p.h. and commenced a gradual turn into the left lane about 120 to 150 feet from the caliche road, and then resumed speed in order not to kill his motor, but reduced speed again to 10 m.p.h. before reaching the field road. He did not give any hand or other signal of his intention to turn left as he thought the truck driver saw what he was doing. He could see the center line of the road come under the tractor as it angled into the left lane. Then the farm tractor's left rear wheel and front wheel went off the pavement and onto the shoulder at a point approximately 30 to 45 feet from the caliche road. It took him about 4 or 5 seconds to go from the place where he started slanting across the highway to the point of contact. The truck driver did not sound his horn or give any signal of an intention to pass.

The truck driver, Minyard, testified concerning the size, weight, brakes, wheels, and other parts of the truck. It had air brakes which could be applied on all 18 of the wheels of the combination truck-trailer by use of the foot brake. There was a separate brake lever on the steering column which would apply the brakes on the rear wheels of the trailer. That would add no braking power when the foot brake was applied.

Minyard further testified that on this occasion he first saw the farm tractor as he came out of the curve about 4/10 mile east of the Redden house. (See sketch) His truck was travelling about 50 m.p.h., and never slowed odwn until he applied his brakes just before the accident. He stated that as he approached closer to the farm tractor, there was a car in between them, and the tractor was proceeding with its right front and rear wheels on the right shoulder, he assumed in order to permit this car to pass. He estimated his distance from the tractor as somewhere between 200 and 500 yards when this car passed appellee. Appellee's vehicle remained in this position, with its right wheels on the right shoulder, until it reached the caliche driveway. Minyard started to pass appellee, thinking he had pulled over to the right to permit an easier passing; however, appellee, without any signal, turned suddenly to his left directly across the left lane into the path of the truck. He estimated that he was about 100 to 150 feet behind appellee when he knew appellee was going to turn. He did not blow the truck's horn. When the farm tractor commenced its left turn he (Minyard) knew it was turning to the left. He had started to pass on the left, and was on or near the center line when he decided to set his brakes. He did not set the hand brake. He applied the foot brake as hard as he could, applying all brakes on all wheels of his truck and trailer. He skidded about 137 feet before the collision. Just before the contract, he tried to turn again with the turn of the farm tractor, but his truck-trailer combination jack-knifed, the trailer broke away from its coupling and ran into the truck portion. The truck had already swung into and hit the farm tractor with such force as to demolish the latter. Minyard stated that when he applied his brakes, the truck-trailer was partly in the left lane; if he had been able to turn to the right he would have hit the farm tractor with the radiator part of his truck; as it was, the truck hit the farm tractor with the right side of the cab.

Pete Ramos testified that he first saw appellant's truck on the highway at a distance of from 2000 to 3000 feet as he was approaching from the west in the truck he was operating. He testified that there were no vehicles between his truck and appellant, and no cars had passed him going west for quite a while before the...