Hammer v. Dallas Transit Co.

• Decision Date: 16 March 1966
• Docket Number: No. A-10850,A-10850
• Citation: 400 S.W.2d 885
• Court: Texas Supreme Court
• Parties: W. J. HAMMER, Jr., Petitioner, v. DALLAS TRANSIT COMPANY, Respondent.

Page 885

400 S.W.2d 885

W. J. HAMMER, Jr., Petitioner, v. DALLAS TRANSIT COMPANY, Respondent.

No. A-10850.

Supreme Court of Texas.

March 16, 1966.

Rehearing Denied April 20, 1966.

Helm, Jones & Pletcher, Houston, for petitioner.

Turner, Atwood, Meer & Francis, Dean Carlton, Dallas, for respondent.

POPE, Justice.

Our former opinion is withdrawn and the following is substituted.

Plaintiff W. J. Hammer, Jr., recovered a judgment on a jury verdict for $25,000 for personal injuries arising out of a two-car collision. The jury found that Dallas Transit Company's bus driver was negligent in traveling on the wrong side of the road which proximately caused the collision between Hammer's vehicle and defendant's bus. The Court of Civil Appeals, in reversing the judgment of the trial court, held that plaintiff's issue 'traveling on the wrong side of the road' was global; the evidence conclusively shows that defendant's bus was out of control; and the defendant was under no burden to prove that its bus was excusably out of control. 390 S.W.2d 823. We reverse the judgment of the Court of Civil Appeals.

Hammer was driving in a northerly direction toward downtown Dallas on the Houston Street Viaduct while it was raining. Transit's bus was proceeding in the opposite direction on the viaduct. The viaduct had four lanes, two for northbound traffic and two for southbound. As Hammer drove north, he approached a curve to the west. He was on his right-hand side of the center line but was in the lane near the center of the viaduct. As Transit's but approached the curve, headed south, the driver turned from the inside or curb lane into the lane near the center of the viaduct so the bus could more easily make the turn around the curve. Instead of turning at the curve, the bus moved straight ahead, crossed the center line several feet and collided with Hammer's vehicle. There was evidence that the road was wet. No one disputes the fact that the collision occurred at a point which placed, Transit's bus several feet in the wrong lane of traffic.

The jury found that (1) the traveling on the wrong side of the road by the Transit's Company's bus was negligence, (2) which was a proximate cause of the collision; (3) the bus driver failed to maintain such control of the bus as would have been maintained by a person of ordinary prudence, (4) which was a proximate cause; (5) the collision was not the result of an unavoidable accident; (6) at the time and just before the collision the bus did not skid suddenly and unexpectedly; (7) (unanswered) and (8) damages. Hammer has abandoned any claim to a judgment based upon the findings on the third and fourth issues on control by reason of our recent decision in Barclay v. C. C. Pitts Sand and Gravel Co., 387 S.W.2d 644 (Tex.Sup. 1965).

The Court of Civil Appeals held that the first special issue was also a general charge. The issue is:

'Do you find from a preponderance of the evidence that at the time and on the occasion in question the Dallas Transit Company's bus traveling on the wrong side of the road was negligence as that term has been defined for you?'

It is our opinion that the issue was not general or global. It sufficiently narrows and confines the inquiry to one act out of a multitude of other possible driving faults. The findings on the first two issues constitute a basis for a judgment for the plaintiff, Hammer.

Transit argues and the Court of Civil Appeals has held that the issue is the same as one which inquires about loss of control which is a general issue that was repudiated by Barclay v. C. C. Pitts Sand and Gravel Co., supra. Its argument is as follows: Hammer proved that Transit's bus was across the center of the road; Transit proved that its bus was out of control at the time it crossed the center line; as a matter of law, this excused its presence on the wrong side of the road unless Hammer proved some specific negligent act or omission by Transit, which caused the loss of control of its bus; Hammer did not allege nor obtain findings of any specific negligent act or omission for Transit's loss of control; and Transit is therefore entitled to a judgment. Transit relies upon Barclay, supra.

In Barclay, we held that a finding that a defendant failed to keep his truck under proper control was global. In that case, the plaintiff relied upon the general loss-of-control issue to establish primary negligence. In this case, the plaintiff does not rely upon loss of control. His issue was that the defendant was traveling on the wrong side of the road. In this case the defendant relied upon loss of control to prove excuse for its own negligence. Its argument is that when it proved the general and unexplained loss of control, it then cast upon the plaintiff the burden to prove the specific reasons that it, the defendant, lost control. We reject the contention. Under Barclay, we held that one may not rely upon the general and unspecified loss-of-control issue. Now the defendant relies upon the same generalized concept. Pressed to its limits, that argument would mean that one's grossly negligent loss of control, would amount to a legal excuse. The burden was upon the defendant Transit to go forward with the evidence to prove not merely its own loss of control but that the loss of control was excusable.

An analagous situation is found in instances in which one relies upon and proves the fact that his adversary violated a statutory standard. The one charged with such a violation may then go forward with the evidence and show excuse or justification for the violation. See Calvert, Special Issues Under Article 6701d, § 86(d), 34 Tex.L.Rev. 971, 977. But it is the one seeking to justify or excuse the violation who has the burden of going forward with the evidence. Younger Bros. v. Marino, 198 S.W.2d 109, 113 (Tex.Civ.App.1946, writ ref. n. r. e.); Jessee Produce Co. v. Ewing, 213 S.W.2d 750 (Tex.Civ.App.1948, no writ); Note, 27 Tex.L.Rev. 866. When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the commonlaw standard. Cunningham v. Suggs, 340 S.W.2d 369, 374 (Tex.Civ.App.1960, writ ref. n. r. e.); Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App.1952, writ ref. n. r. e.); Fisher v. Leach, 221 S.W.2d 384, 390 (Tex.Civ.App.1949, writ ref. n. r. e.); Taber v. Smith, 26 S.W.2d 722 (Tex.Civ.App.1930, no writ); Hodges, Special Issue Submission in Texas, § 25 (1959). The burden of persuasion on the whole case remains on the one relying upon the statutory violation. See Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). In Phoenix, supra, the one who was in the wrong traffic lane went forward with the evidence and proved that a suddenly deflated tire accounted for his position on the road. He proved an excuse for being on the wrong side of the road. In Dallas Transit Co. v. Tolbert, 337 S.W.2d 617 (Tex.Civ.App.1960, writ rer. n. r. e.), upon which Transit strongly relies, Tolbert proved that he proceeded after the accident into the wrong lane of traffic, because his vehicle was excusably out of control.

The Court of Civil Appeals in this case has held that the evidence conclusively showed that defendant's bus was out of control. The jury apparently did not believe defendant's explanation that the bus was out of control. It found that the bus was negligently traveling on the wrong side of the road and, contrary to defendant's contention, that it did not skid suddenly and unexpectedly. There was evidence that the road was wet and that Transit's bus skidded out of control. However, its bus driver also testified that he was driving south in the...