Hammond v. Stricklen

• Decision Date: 02 August 1973
• Docket Number: No. 683,683
• Citation: 498 S.W.2d 356
• Parties: Bob HAMMOND, dba Bob Hammond Shows, Appellants, v. Hazel STRICKLEN et vir, Appellees.
• Court: Texas Court of Appeals

Page 356

498 S.W.2d 356

Bob HAMMOND, dba Bob Hammond Shows, Appellants, v. Hazel STRICKLEN et vir, Appellees.

No. 683.

Court of Civil Appeals of Texas Tyler.

Aug. 2, 1973.

Rehearing Denied Aug. 30, 1973.

Tom Lorance, Lorance & Thompson, Houston, for appellant.

John M. O'Quinn, Brown, Kronzer, Abraham, Watkins & Steely, Houston, R. E. Swift, Palestine, for appellees.

DUNAGAN, Chief Justice.

This suit was brought by Hazel Stricklen, et vir, against Bob Hammond, dba Bob Hammond Shows, in the 87th District Court of Anderson County, Texas, seeking damages for personal injuries sustained by her when her automobile went out of control, left the roadway, and struck a tree to avoid a collision with one of appellant's large tractor-trailer units obstructing the highway. The case was submitted to the jury on thirteen special issues. In all respects the jury verdict was favorable to appellees, and following a remittitur of certain medical and hospital expenses awarded by the jury, a judgment in the amount of $66,565.20 was entered against appellant. This appeal results.

Hereafter appellant will be referred to as 'Hammond Shows' and appellee, Hazel Stricklen, as 'Mrs. Stricklen.'

Appellant contends that there is no probative evidence raising the issues and supporting the findings of the jury or that the jury's answers in response to Special Issues Nos. 1 through 11 are contrary to the great weight and overwhelming preponderance of the evidence and are manifestly wrong and unjust and that the court erred in entering judgment of the jury's answers to said special issues.

When the assignment is that there is 'no evidence,' the reviewing court may consider only that evidence, if any, which viewed in its most favorable light, supports the jury findings and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957). When the contention is made that the evidence is insufficient to support the jury findings, or the findings are against the great weight and preponderance of the evidence, a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Because it was undisputed that one-half of the east-bound lane of travel (Mrs. Stricklen's lane) was obstructed by the presence of the truck-trailer unit across the highway, no special issue was submitted inquiring whether the truck was caused to be moved across the centerline or was not entirely within the right half of the roadway. Special Issue No. 1 inquires as to whether the 'failure * * * to keep the Defendant's (Hammond Shows) truck completely within his right-hand half of the roadway was a proximate cause of the occurrence * * *.' The jury responded affirmatively.

Special Issue No. 2 inquired as to whether Hammond Shows failed to give 'adequate warning,' and the term 'adequate warning' was defined as the type of warning that a reasonably prudent person would give under the same or similar circumstances. The jury's answer to Special Issue No. 2 and Special Issue No. 3 (the 'proximate cause' issues) was in the affirmative.

Special Issues Nos. 4 through 11 were contributory negligence issues and inquired whether Mrs. Stricklen's failure to slow down was negligence, whether she kept a proper lookout, whether she was operating her vehicle at an excessive rate of speed, and whether she failed to make a proper application of the brakes. The jury answered negatively to these special issues, and were, therefore, not required to answer the various proximate cause issues predicated upon affirmative answers to these inquiries.

Special Issues Nos. 12 and 13 inquired as to what monetary damages Mrs. Stricklen suffered, if any, as a result of the accident in question.

The accident occurred on May 11th, 1969, and at the time Mrs. Stricklen was forty-five years of age. The highway where the accident occurred consists of two traveled lanes.

Kenneth Ray Buckhanan, who was the investigating Highway Patrolman, testified that he arrived at the scene and the driver of the truck identified himself. He also testified that each lane of travel was 11 feet to 12 1/2 feet wide; that there was a rather steep hill down which Mrs. Stricklen would be proceeding just prior to the crash. He found her car in the right-hand ditch and she had collided with a tree. He also found that the truck was across the highway with the rear duals off in the ditch and that the traffic had to get completely off the roadway to pass the truck. He further testified that the front end of the truck was some six inches to sixteen inches off the pavement on the right considering the direction of Mrs. Stricklen's travel. From Mr. Buckhanan's testimony it would appear that the truck effectively blocked the east-bound lane.

Buckhanan testified that 'the only way a car could get around in front of the truck was to go on the shoulder with all four wheels.' From this evidence it would be necessary for Mrs. Stricklen to drive her automobile on the shoulder of the highway to avoid a collision with the truck-trailer unit. He testified that the crest of the hill was some 300 to 400 feet from the truck and that at 60 miles per hour (the speed she said she was moving) the normal stopping distance would be some 350 feet; that in addition to being harder to stop going downhill, also the coefficient of friction was effected by the fact that this was an older road; that it was hot weather and there was therefore not much grass on the shoulder; that it was an iron ore shoulder with little traction; and that Mrs. Stricklen's skidmarks did not indicate she was speeding.

Appellant's witness, Eugene Hammond, the son of the owner of Bob Hammond Shows, appellant, who was at the scene when the wreck occurred testified there was not enough room for a vehicle approaching in the eastbound lane to travel around in front of the truck without getting on to the shoulder. He realized the truck was a hazard and told another employee, David Kitchens, to take a man with him and go to the top of the hill to 'watch for traffic.' He took this precaution because he 'appreciated the truck was a danger' and that somebody could 'lose control.' He further testified that Kitchens and the other man (Robert Yoder) took two flares and two flags to the crest of the hill.

Appellant's witness, David Kitchens, testified that he observed Mrs. Stricklen coming over the top of the hill and that Yoder was signaling her with reflectors in his hand and was standing in the middle of the east-bound lane of traffic; that he saw Yoder run and about that time he saw Mrs. Stricklen's vehicle come into view and then 'you could hear her loud squealing noises' which were her brakes being applied. He saw her hit the tree after she slid off the pavement. He also testified that Yoder was a little 'greasy and oily' and 'a little bit dirty.'

Officer Buckhanan described the man who identified himself to him as the one who was up on the hill stopping traffic, as wearing blue jeans and had on a shirt 'that was open down the front and had long hair and was dirty.'

Mrs. Stricklen testified that as she approached the area she saw a man 'that was waving me down' on the shoulder at the top of the hill . He had no flag or warning device, his shirt was unbuttoned and he had long hair and whiskers and she simply 'did not slow down for him' because she thought he was trying to get a ride and was fearful of bodily harm. She said she was not 'about to stop for him.' Her testimony also shows that she was traveling about 60 miles per hour as she crested the hill, and as she came over the top she saw the truck-trailer unit 'across the road.' She exclaimed 'Oh, my God,' and then tried to keep from crashing into the truck. She applied her brakes with all her strength and her car started skidding. When she got on the shoulder she lost control and struck the tree.

On cross-examination she testified that the man on the hill had nothing in his hand and he did not run as she went past him; that because of her apprehension concerning the man on the hill, she did not slow down. She described the man as one who 'needed a haircut pretty bad;' that she got on her brakes 'instantly' and she estimated that she traveled 150 feet from the top of the hill to the tree which she struck; that she tried her best to stop before hitting the tree but could not do so as she 'lost control' when she went off the pavement.

Portions of Mrs. Stricklen's deposition were offered by appellant wherein she testified that the employee of appellant was not at the top of the hill as she approached but was approximately 100 feet away; that when she crested the hill and saw the truck-trailer unit at the bottom she then 'realized what he was trying to do.'

There is other evidence in the record, in our opinion, supporting the jury's findings but we will not unduly lengthen this opinion to detail such testimony. Appellant's testimony conflicts with that offered on behalf of appellee.

The court of civil appeals, when affirming a case in which sufficiency of evidence points are involved, is not required to set out the evidence pro and conon the issue and will not do so anymore than we already have. Reddick v. Lindquist, 484 S.W.2d 441 (Tex.Civ .App., Ft. Worth, 1972), and Jackson v. International Service Insurance Company, 450 S.W.2d 896 (Tex.Civ.App., Ft. Worth, 1970, writ ref'd n.r.e.).

It was within the jury's province, as the trier of the facts, to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different...