Garner v. Prescott

• Decision Date: 03 November 1950
• Docket Number: No. 2829,2829
• Citation: 234 S.W.2d 704
• Parties: GARNER v. PRESCOTT.
• Court: Texas Court of Appeals

Page 704

234 S.W.2d 704

GARNER v. PRESCOTT.

No. 2829.

Court of Civil Appeals of Texas, Eastland.

Nov. 3, 1950.

Rehearing Denied Dec. 1, 1950.

Nelson, Montgomery & Robertson, Wichita Falls, for appellant.

Reily, Reily & Spurr, Shawnee, Okl., Donald & Donald, Bowie, for appellee.

GRISSOM, Chief Justice.

As the result of a collision between an automobile driven by Roy Tripp and a truck driven by Jesse Lester Garner's son, Thural Garner, Cecil Lee Prescott was injured and his wife and son were killed, while riding in Tripp's automobile. Prescott brought suit for damages thus sustained. Prescott alleged that he and his wife and minor son were traveling from the South Plains of Texas to Oklahoma as the guests of Tripp; that, early one morning in February, Tripp was driving his automobile east when he came to a strip of pavement coated with ice; that they were traveling about 35 miles an hour on their right-hand side of the pavement when they observed Garner's truck, 150 or 200 yards away, traveling west toward them, in the center of the pavement; that Garner's truck was traveling at an excessive rate of speed, to-wit, more than 60 miles per hour; that Tripp slacked his speed and pulled his car to the right and plaintiff anticipated the driver of the truck would reduce its speed and pull to its right side of the pavement; that the driver of the Garner truck did not reduce its speed or pull to its right side; that, in an attempt to avoid being struck by the truck, Tripp pulled his car to the south shoulder and gently applied the brakes, whereupon, his automobile, suddenly and without notice, turned its front end to its left, or north, but that Tripp's car was still on its right-hand side of the pavement; that Garner's truck continued at the same speed in the center of the pavement and ran into Tripp's automobile, injuring plaintiff and killing his wife and son.

Plaintiff alleged Garner's truck had a trailer mounted with double tanks for transporting butane gas; that it belonged to defendant, Jesse Lester Garner, and was being operated by his son, Thural, acting in the course of his employment by his father; that Thural was guilty of negligence, which was a proximate cause of plaintiff's injuries and the death of his wife and son, as follows: (1) in operating said truck in excess of 35 miles per hour, to-wit, at a speed in excess of 60 miles per hour; (2) in driving on the wrong side of the road; (3) in not keeping a lookout for other vehicles; (4) in not having the truck under control; (5) in driving at an excessive speed 'when the pavement was covered with ice' and (6) in driving in the center of the pavement.

Defendant answered, among other things, that Thural Garner was driving Garner's truck west in a careful and prudent manner; that the morning was cold and the paving, for five or more miles east of Seymour, was covered with ice; that four or five miles east of Seymour the automobile in which the Prescotts were riding started to skid on ice covering the pavement and skidded north across the pavement to said automobile's left-hand side of the pavement and into defendant's butane truck, which was being operated on its right-hand side of the pavement; 'that the icy condition of the pavement at the time and place in question constituted a new and independent cause of the injuries and damages, if any, which were suffered by plaintiff for which the defendant is not responsible, and without which the plaintiff would have sustained no injury or damage.' Garner alleged the driver of his truck could not have foreseen that some person driving an automobile east along the highway and approaching defendant's truck would, suddenly and without warning, lose control of his automobile and skid on the ice across the highway to the automobile's left-hand side of the highway into defendant's truck, which was traveling on its right-hand side of the highway.

The jury found, among other things, (12) that Thural Garner was driving the truck immediately prior to the collision at 45 miles per hour; (13) that such speed was negligence and (14) a proximate cause of the collision; (15) that Thural 'failed to use ordinary care * * * to keep a proper lookout' for other vehicles going east on the highway; (16) that this was negligence and (17) a proximate cause of the collision. The jury found (18) that Thural operated the truck on its left-hand side of the highway; (19) that this was negligence and (20) a proximate cause of the collision; (21) that Thural failed to keep the truck under proper control; (22) that this was negligence, and (23) a proximate cause of the collision; (24) that Thural drove the truck at an excessive speed when the pavement was covered with ice; (25) that this was negligence and (26) a proximate cause of the collision; (27) that Thural drove the truck down the center of the highway immediately prior to and at the time of the collision 'when automobile in which plaintiff, wife, and son were riding were entitled to use its right side of pavement'; (28) that this was negligence and (29) a proximate cause of the collision. The jury found (30) that Thural, by the use of ordinary care, could not have stopped the truck prior to the collision; (31) that Thural's failure to stop was not negligence and (32) not a proximate cause of the collision. The jury found that the collision was not an unavoidable accident.

The jury found that plaintiff had suffered damages amounting to $2,000.00; that he was also damaged $2,500.00 by the death of his wife, $750.00 by the death of his son, and that he had expended $961.50 for the funerals. The court rendered judgment for Prescott for said amounts and Garner has appealed.

Appellant contends the court erred in refusing to include in the definition of proximate cause the term new and independent cause, to define it and to submit to the jury the defense of new and independent cause. As heretofore shown, appellant alleged that the icy condition of the pavement was a new and independent cause of the collision. Defendant did everything necessary to obtain the inclusion of such term in the definition of proximate cause and to require the court to submit the issue of new and independent cause to the jury, provided the evidence raised the issue. Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61.

The versions of appellees and appellant, substantially as set out in appellant's brief, are as follows:

Appellee's version: Garner's truck was being driven down the middle of the highway 60 to 65 miles per hour; the truck did not slack its speed nor pull to its right prior to the collision. When the truck was about 100 yards distant, Tripp blew his horn but the truck did not move to its right. Neither Tripp nor the occupants of his car knew ice was on the highway. Tripp then started to pull off the pavement to his right. When the right wheels of Tripp's car went off its right side of the pavement the car skidded and went sideways with its back wheels on the shoulder of the pavement and its front wheels on the pavement but still south of the center line, that is, on its right-hand side; that Garner's truck continued down the middle of the highway at 60 to 65 miles per hour, and ran into Tripp's automobile.

Appellant's version: From Seymour east to the scene of the collision the highway was covered with a thin, transparent sheet of ice. Thural saw the Tripp automobile approaching him, going east, about 300 yards away. Tripp's automobile was weaving slightly on the road. The truck was then on its right-hand side of the highway going west. As the vehicles approached each other the Tripp automobile continued to weave and finally began to skid sideways. Thural Garner 'let up on the gas' and started slowing down all he could, pulling as far to the right as possible prior to crossing a culvert 100 yards ahead. By the time Thural had crossed the culvert the Tripp automobile had gotten into the middle of the highway about half way across the the center line and was skidding sideways. As soon as the truck passed the culvert, Thural drove off the pavement to his right (north) shoulder of the highway. During all this time Thural was slowing the butane truck, using his trailer brakes and, finally, the brakes on the truck. The Tripp automobile continued skidding north, on to its left-hand side of the highway, until it got to the north borrow pit and hit appellant's truck, the right front portion of the Tripp automobile striking the left front portion of Garner's truck.

The question is whether or not the evidence raised the issue of new and independent cause. Young v. Massey, 128 Tex. 638, 101 S.W.2d 809. Ice on a highway may constitute a new and independent cause of a collision. See Berg v. New York Cent. R. Co., 391 Ill. 52, 62 N.E.2d 676; Megan v. Stevens, 8 Cir., 91 F.2d 419, 113 A.L.R. 992; Hickey v. Missouri Pacific Railroad Corporation in Nebraska, 8 Cir., 8 F.2d 128; Barrett v. United States Railroad Administration, 196 Iowa 1143, 194 N.W. 222. After careful consideration we have concluded that the evidence is sufficient to raise the issue. 65 C.J.S., Negligence, § 111, pp. 688, 700; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401, 405; Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 62.

There was evidence to the effect that ice on the pavement caused Tripp to lose control of his automobile and caused his car to skid across the pavement to its left-hand side and strike appellant's truck while it was in the borrow pit on its right-hand side of the highway. The evidence does not conclusively establish that one operating the truck in the manner Thural says he was should have anticipated such action. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, 1065; 65 C.J.S., Negligence, § 111, p. 697. Whether or not the ice was an intervening cause which broke the chain of causation between Thural's alleged negligence and appellee's injuries was a question for...