Davis v. Rabon
| Decision Date | 03 February 1977 |
| Docket Number | No. 16818,16818 |
| Citation | 547 S.W.2d 340 |
| Parties | Roger Lynn DAVIS et al., Appellants, v. Morgan Ray RABON et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Kronzer, Abraham & Watkins, Robert E. Ballard, Michol O'Connor, Houston, for appellants.
Hugh Rice Kelly, Thomas R. Phillips, Houston, Baker & Botts, Houston, of counsel, for appellees.
This is an appeal from a take nothing judgment entered in a suit to recover damages for bodily injuries growing out of a collision between a truck and a motorcycle. The judgment was entered on a jury verdict finding primary negligence and contributory negligence.
The plaintiff, Roger Lynn Davis, was riding his motorcycle in a westerly direction on Creekmont Road. The defendant, Morgan Ray Rabon, was driving a truck owned by the Houston Lighting & Power Company in an easterly direction on the same street.
The jury found that Rabon failed to give a continuous left turn signal during the last 100 feet before turning and that such failure was a proximate cause of the collision. The jury also found that Rabon began to turn left when the vehicle driven by Davis was approaching so closely as to constitute an immediate hazard and such failure to yield was a proximate cause of the collision. The jury then found that the plaintiff was driving at a greater rate of speed than a person using ordinary care would have driven and that this was a proximate cause of the collision.
The plaintiff has appealed contending that there is no evidence, or in the alternative insufficient evidence, to support the jury's finding on speed or on proximate cause. In reviewing the no evidence points we look only to the evidence having probative force which favors the verdict. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
A bridge was located about 100 yards from the place where the collision occurred. The plaintiff testified that as he approached the bridge he was traveling some 25 to 30 miles per hour and that he slowed down some as he crossed the bridge. The plaintiff testified that when the road was wet he sometimes slowed down to 15 to 20 miles per hour and that that was a safe speed under those conditions. There was testimony that the road was wet at the time of the collision. The paved portion of the road was about 18 feet in width. The road was paved with asphalt. Shallow ditches were on each side of the road. The motorcycle laid down 87 feet of skid marks. The collision occurred about two feet from the edge of the plaintiff's side of the road. The motorcycle hit the truck at a point between the rear wheel and the bumper. There was testimony that the motorcycle slid sideways the last 20 to 25 yards before hitting the truck.
There is some evidence having probative force from which the jury was entitled to conclude that the plaintiff was driving faster than an ordinarily prudent person would have driven under the same or similar circumstances. The jury would be entitled to conclude that 25 miles an hour is an excessive speed for a motorcycle traveling on a comparatively narrow wet asphalt street. Garza v. Anderson, 417 S.W.2d 368 (); Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189 (Tex.Civ.App. Houston (14th) 1968, writ ref'd n. r. e.); Villarreal v. Zouzalik, 515 S.W.2d 742 ().
The jury might have determined from the evidence that had the motorcycle been traveling at a slightly slower rate of speed the truck would have had time to have crossed the street safely. The jury might also have believed that the speed prevented the plaintiff from taking evasive action to avoid the accident. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Alexander v. Appell Drilling Co., 290 S.W.2d 377 (Tex.Civ.App. Waco 1956, writ ref'd n. r. e.).
A closer question is presented by the insufficient evidence assignment. We must consider all of the evidence and determine whether or not the verdict is manifestly unjust. With the exception of the defendant, all of the witnesses who testified remembered that the road was dry and the records of the investigating officer indicated that it was a clear day and a dry road at the time of the collision. The evidence was also strongly controverted on the question of whether the plaintiff lost control of his motorcycle prior to the collision.
The plaintiff's version of the events leading up to the collision cannot be reconciled with that recounted by the defendant driver. As the plaintiff approached the scene of the collision he crossed a bridge which was located between 100 and 140 yards from the scene of the collision. This bridge sloped both ways from the center. On the west side of the bridge there were some holes and mounds. Roger testified that he was well acquainted with this stretch of road and with the condition of the bridge. He knew that he could not go over it real fast on his motorcycle. He approached the bridge on this occasion at a speed of 25 or 30 miles per hour. As he crossed the bridge he slowed down because of the drop-off and the holes in the road. He saw the Light Company pick-up when he approached the bridge. It was traveling slowly in his direction in the middle of the road. He was able to cross the bridge without hitting any of the holes and did not lose control of his motorcycle as he came off the bridge. He was driving in the middle of his side of the road at about 25 miles per hour. He did not speed up and continued to watch the truck. He saw no other vehicles on the road. Without giving any warning the truck turned to the left in front of him in the direction of a private driveway. He immediately hit his brakes. At that time the truck was about three car lengths from him. He did not have time to go around the truck, and he hit it right behind the back wheel. The plaintiff admitted that on a previous deposition he had testified that the accident happened in the middle of the street rather than in the middle of his side of the street as he testified at the trial. He also retracted his deposition testimony that he had found some skid marks out there in the middle of the road starting about three car lengths back of the point of collision and leading up to the point of collision. In his deposition he testified that the truck was blocking the entire street.
The plaintiff testified that it wouldn't have been safe to go across the bridge at 40 miles an hour because he would probably get air borne. He said he did not get air borne. He also testified that he did not lose control of his bike after he hit the bumps near the bridge.
Clyde Robinson, a witness called by the plaintiff, testified that he saw the collision from his position inside his house. The truck made a left turn into his driveway. At the time of the collision the truck was about half way off the blacktop portion of the street. He saw the motorcycle begin sliding right about at his mailbox and it continued some 75 feet to the point of collision. The truck was moving slowly and did not completely stop until it had cleared the road after the accident had occurred. He heard Mr. Rabon tell Roger's father that he didn't see Roger. He testified that it would have been possible for Roger to go around the truck if he had not been skidding, but that it is impossible to straighten out a motorcycle once it begins skidding.
Michael Ray Reed, a sixteen year old boy, who was a friend of the plaintiff, lived near the scene of the collision. He testified that at the time of the collision he was in his back yard playing basket ball on a dirt court, and that the ground was dry. He saw the pick-up truck and the motorcycle meeting. He testified that the truck driver was looking at the meter in the yard and that he just turned in front of the motorcycle. He knew Roger and had talked to him that morning. He saw the actual collision and it occurred on the paved portion of the road.
Officer Bobby Cartwell testified that he investigated the accident. He received the report about 10:20 and arrived on the scene at 10:40. He was informed that the accident...
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