Impson v. Structural Metals, Inc.

• Decision Date: 26 July 1972
• Docket Number: No. B--2879,B--2879
• Citation: 487 S.W.2d 694
• Parties: Grover IMPSON et al., Petitioners, v. STRUCTURAL METALS, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 694

487 S.W.2d 694

Grover IMPSON et al., Petitioners, v. STRUCTURAL METALS, INC., et al., Respondents.

No. B--2879.

Supreme Court of Texas.

July 26, 1972.

On Rehearing Oct. 18, 1972.

Edwards & De Anda, William R. Edwards and Joe K. Longley, Corpus Christi, Wade & Traylor, Beeville, for petitioners.

Keys, Russell, Watson & Seaman, M. W. Meredith, Jr., Corpus Christi, for respondents.

GREENHILL, Justice.

This action for damages arose out of a tragic highway accident between a truck owned and operated by the defendants, Structural Metals and Joe Polanco respectively, and an automobile in which three people were killed, including Mrs. Impson, and two others were injured. The truck attempted to pass the car within a prohibited distance of a highway intersection. The car turned left into the intersection and was struck by the truck which was attempting to pass the car in the left hand lane. The interests represented by the plaintiffs are those of the passengers in the back seat of the car. No issues of contributory negligence are before us.

A criminal statute prohibits drivers from driving their vehicles on the left hand side of a highway within 100 feet of an intersection. The jury found that the defendant driver did this, and that such action was a proximate cause. No issue of negligence was submitted, and this creates the problem before us.

The trial court viewed the violation of the statute, intended as a highway safety measure, as negligence per se; and under the above findings, it entered judgment for the plaintiffs. The Court of Civil Appeals agreed that violation of the statute was negligence per se; but the majority of that court held that since evidence of justification or excuse was introduced, it become the duty of the trial court to submit (and the duty of the plaintiffs to request) a special issue on negligence. In doing so, it followed the rationale of the opinions in Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex.1966), and Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, writ refused, n.r.e., 1952. Instead of rendering judgment for the defendants, however, that court concluded that the case had been tried 'on the wrong theory'; and it ordered a new trial. 469 S.W.2d 261. The dissenting justice was of the view, among other things, that no evidence of a legally acceptable excuse or justification for violating the statute was introduced. ¹ We agree with the dissent on this point. Accordingly, we reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The pertinent facts of this case are set out in great detail in the opinion of the Court of Civil Appeals. They are repeated, with greater emphasis on the evidence offered as excuses for violation of the statute, in the dissenting opinion.

Under the Hammer and Phoenix rule, and under the rule of Christy v. Blades, 448 S.W.2d 107 (Tex.1969), the party violating the statute must present some legally substantial excuse or justification. As stated by Dean Page Keeton, mere '(o)rdinary care does not necessarily constitute one of the excuses ingrafted by the courts to the legislative standard. Otherwise, the doctrine is meaningless; it would simply be another way of saying that the violation of a statute is negligence per se when the violation would constitute the failure to exercise ordinary care.' ²

Harper & James point out that 'There is some merit in the objections to both the negligence per se and the 'evidence of negligence' rules. The negligence per se rule is certainly capable of rigid Draconian administration. But the alternative rule, at the other extreme, may be administered so that juries are empowered to dispense with reasonable statutory requirements in every case No matter how flimsy the excuse.' (emphasis ours.) 2 Harper & James, Law of Torts 1001, § 17.6 (1956).

So the problem here is to decide what excuses or justifications are legally acceptable. In Phoenix, the excuse was a tire blowout. In Hammer, it was that because of the wet streets, the defendant's bus unavoidably skidded out of control. In Christy, the contention was that it was simply impossible for the truck driver to stop within the prescribed distance from the railroad track. In none of these cases has this court addressed itself to the legal sufficiency of the excuse.

The Restatement of Torts, Second (1965), deals with this problem in a new section 288A. It states that an Excused violation of a legislative enactment is not negligence. While the section expressly says that the list of excusable situations given is not intended to be exclusive, it lists five categories. They are:

'(a) the violation is reasonable because of the actor's incapacity;

'(b) he neither knows nor should know of the occasion for compliance;

'(c) he is unable after reasonable diligence or care to comply;

'(d) he is confronted by an emergency not due to his own misconduct;

'(e) compliance would involve a greater risk of harm to the actor or to others.'

Under category (a), 'incapacity,' could come cases where the violator was too young, or did not have the mental capacity, to be charged with negligence. It might include a blind man who unknowingly walks a red light (though he may be contributorily negligent for other reasons), or a driver who is rendered physically incapable because of a heart attack. Under category (b) could come cases where a night driver has a tail light to go out unexpectedly and without his knowledge. Under category (c), 'unable after reasonable diligence or care to comply,' could come cases involving impossibility, as in Christy v. Blades. Under category (d), 'emergency not due to his own misconduct,' could come cases in which there is an unexpected failure in the steering or braking system; a blowout of a tire which is reasonably thought to be in good condition; a sudden confrontation with blinding dust or smoke on the...