Eagle Trucking Co. v. Texas Bitulithic Co.

• Citation: 590 S.W.2d 200
• Decision Date: 01 November 1979
• Docket Number: 1215-A,Nos. 1215,s. 1215
• Parties: EAGLE TRUCKING COMPANY et al., Appellants, v. TEXAS BITULITHIC COMPANY et al., Appellees, and Johnnie Wesley GUIN et al., Appellants, v. EAGLE TRUCKING COMPANY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 200

590 S.W.2d 200

EAGLE TRUCKING COMPANY et al., Appellants, v. TEXAS BITULITHIC COMPANY et al., Appellees, and Johnnie Wesley GUIN et al., Appellants, v. EAGLE TRUCKING COMPANY et al., Appellees.

Nos. 1215, 1215-A.

Court of Civil Appeals of Texas, Tyler.

Nov. 1, 1979.

Rehearing Denied Nov. 29, 1979.

Blake C. Erskine, Kenley, Boyland, Coghlan & Erskine, Longview, Blake Bailey, Wellborn, Houston, Bailey & Perry, Henderson, for appellants.

Melvin R. Wilcox, III, Otto A. Ritter, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, Michael A. Hatchell, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellees.

McKAY, Justice.

These are two separate appeals from a single judgment of the district court in Gregg County. One appeal was taken to the Court of Civil Appeals for the Sixth Supreme Judicial District and one to this Court; they were consolidated in this Court by the Supreme Court.

The case arose from a collision between two trucks on Farm-to-Market Road 2011 south of Longview, Texas. A dump truck driven by Johnnie Wesley Guin, travelling north, rounded a curve and struck a winch truck which was standing on the highway surface a few yards south of a bridge. The winch truck was standing across the highway, perpendicular to the long axis of the road, and at least partially blocking both lanes of traffic. The winch truck was being used to pull a water pump from an area near the creek over which the bridge crossed, the pump having been used in the drilling of a nearby oil well. Guin and Robert G. Fitch, operator of the winch truck, suffered serious physical injuries and there was damage to both trucks.

In addition to Guin and Fitch the parties in the trial court were as follows: Billy Wayne Peden, who was the owner of the dump truck; Norman Gamel and Clyde Grantham, doing business as the partnership G & G Construction Company, who had engaged the services of Guin and of Peden's truck for the purpose of hauling sand; Texas Bitulithic Company which owned and operated "hot mix" plants in Longview and Kilgore where the sand was being hauled; Eagle Trucking Company which was engaged in oil field operations and owned the winch truck; United Drilling Company which had been engaged in drilling the nearby oil well and owned the water pump which was being pulled from the creek bed by Eagle's truck; and finally, Protective Insurance Company which was the worker's compensation carrier for Eagle Trucking and had paid benefits to Fitch.

The facts of the case are basically simple. Texas Bitulithic contracted with G & G Construction to have sand hauled to the former by the latter. G & G Construction had two trucks of its own for such hauling and, on occasion, used trucks owned by others, such as Peden's. Peden was an assistant manager for Texas Bitulithic and also operated his dump truck. Guin drove the truck for Peden. Guin, on the morning of the accident, February 23, 1976, picked up a load of sand at the Minor Sand Pit and began travelling north on FM 2011 toward the Texas Bitulithic plant in Longview. He drove around a righthand curve and came down a slight incline toward the Gamble Creek bridge where the winch truck was standing crosswise of the highway. There were four employees of United at the scene, one of which was stationed south of the bridge as a "flagman." It was disputed exactly how far south of the bridge that he was located when Guin approached. The "flagman," who had no flag or other warning device other than his gloves and perhaps his hard hat, attempted to stop the dump truck by waiving his arms. Guin, who claims he was distracted by the "flagman" and did not know what the man wanted, drove past him and collided with the winch truck. From Guin's direction of travel, the bridge area and the winch truck would have been visible from at least 631 feet.

The dump truck, fully loaded, weighed approximately 20 tons. The winch truck, described as a "15-ton truck," weighed approximately 11 tons, and had the 5-ton water pump sitting on its tailboard when it was struck. It is disputed whether Guin applied his brakes prior to the collision and the speed at which he was travelling at the time of the impact is also disputed. The force of the collision carried the winch truck a distance of 78 feet onto the bridge and threw Fitch from the truck, causing him to land below the bridge.

It had rained for several days prior, but the day of the accident was clear and dry. The rain, however, had softened the ground so that Fitch and his supervisor at the scene felt that they could not maneuver the truck off the road surface. The winch truck was at first parked parallel to the road and its winch was used to pull the water pump part of the way to the truck. Fitch then maneuvered the truck into a position perpendicular to the road, having to back it up and go forward several times in order to position it on the narrow road. He then utilized the winch to pull the water pump up to the truck and onto its tailboard. It was shortly after he got the pump onto the tailboard that the collision occurred. There was testimony that he could not have continued to pull the pump up to the truck while the truck was positioned parallel to the road because of the angle of the incline up which it would have to have been pulled, which would probably have caused the pump to turn over.

Guin sued Eagle Trucking, Fitch, and United Drilling for personal injuries, loss of earnings and earning capacity, and hospital and medical expenses, alleging damages totalling $75,000 and several acts or omissions of negligence by the defendants, i. e., blocking the highway, failing to keep a proper lookout, failing to have a flagman warn oncoming traffic, and failing to place flares or warning signs on both sides of the winch truck.

Fitch counterclaimed for his injuries against Guin, Peden, Gamel and Grantham d/b/a G & G Construction, Texas Bitulithic, and United Drilling, alleging negligence on the part of Guin in failing to keep a proper lookout, speeding, failing to yield right-of-way, and failing to timely apply his brakes; his damages were alleged to be $250,000. Fitch alleged that he notified employees of United Drilling that flagmen should be placed in both directions to warn traffic. Protective Insurance Company, as worker's compensation insurance carrier, claimed subrogation rights to $18,111.30 of any recovery by Fitch.

Eagle Trucking filed its counterclaim against Guin, Peden, G & G, Texas Bitulithic and United Drilling for $9,500 in damages to its winch truck plus loss of use and total damages in the amount of "no less than $30,000."

United Drilling brought a cross-action against Guin, Peden, G & G, and Texas Bitulithic for indemnity and contribution.

All counter-defendants filed answers to the respective counterclaims against them. The case came to trial before a jury, which made its findings in favor of the winch truck parties. The special issues and the jury's responses thereto are set forth in the footnote. ¹

The judgment of the trial court was that: (1) motions for instructed verdict by Texas Bitulithic, G & G Construction, and United Drilling be granted; thus (a) Fitch, Eagle Trucking, and Protective Insurance take nothing against said movants, (b) Guin and Peden take nothing against United Drilling, and (c) United Drilling take nothing on its cross-action for indemnity and contribution; (2) Guin and Peden take nothing against Fitch and Eagle Trucking; (3) Fitch recover from Guin and Peden, jointly and severally, $216,232.35 (and Protective Insurance recover $18,111.30 from that sum); and (4) Eagle Trucking recover from Guin and Peden, jointly and severally, $47,000.00.

In No. 1215, Fitch, Eagle Trucking, and Protective Insurance appeal from the trial court's granting of Texas Bitulithic's and G & G Construction's motions for instructed verdict. In No. 1215-A, Guin and Peden appeal from the adverse judgment making them liable for damages to Fitch and Eagle Trucking.

NO. 1215-A

In their first point of error, Guin and Peden urge that the trial court incorrectly overruled their motion for new trial because Fitch and Eagle Trucking were negligent as a matter of law. Guin and Peden contend that the evidence shows a violation of Article 6701d, sec. 93(a), ² by the positioning of the winch truck across the highway, leaving no unobstructed width of roadway for the passage of other vehicles. That statute provides:

"Sec. 93(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway."

Fitch and Eagle Trucking assert that Guin and Peden failed to plead a violation of the quoted statute, the first mention thereof being made in the motion for new trial. In Guin's first amended original petition, however, he alleged that as he approached the area at which the accident occurred, he saw Eagle's truck "completely blocking FM 2011," and that he was unable to halt his vehicle "in time to avoid a collision with (the winch) truck that had FM 2011 completely blocked." He also asserted as an act of negligence the "stopping and/or parking (of) the (winch) truck completely across the paved or main-traveled part of FM 2011." Peden, in his original counterclaim, alleged a violation of Article 6701d in that Eagle, United, and Fitch "created a dangerous and perilous situation on FM Road 2011," and alleged that they "failed to comply with . . . Art. 6701d." In their first supplemental answer to Peden's counterclaim, Fitch...