L. M. B. Corp. v. Gurecky, 680
| Decision Date | 30 November 1972 |
| Docket Number | No. 680,680 |
| Citation | 489 S.W.2d 647 |
| Parties | L.M.B. CORPORATION et al., Appellants, v. Louis GURECKY, Appellee. |
| Court | Texas Court of Appeals |
Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker, A. W. Krebs, Jr., Houston, for appellants.
Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, for appellee.
This is an automobile-pickup collision case. Suit was instituted by Louis Gurecky against L.M.B. Corporation to recover damages arising out of an accident when the automobile that was then being driven by him was struck by a pickup truck that was then being driven by Jose Gonzalez, an employee of defendant. The collision occurred on plaintiff's right half of the roadway. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court.
The jury, in answer to Special Issues Nos. 1, 2 and 3, found that Gonzalez failed to keep the pickup truck completely within the right half of the roadway (No. 1), that such failure was not negligence (No. 2), and that such failure was a proximate cause (No. 3). The answers to Issues Nos. 2 and 3 were each conditioned upon an affirmative answer to Issue No. 1.
The trial court, upon motion by plaintiff, disregarded the answer to Special Issue No. 2 and entered judgment for plaintiff. Defendant has appealed. We affirm.
Among other defenses, defendant pleaded that Gonzalez was faced with 'an emergency that was not created by him, and that he exercised ordinary care in acting under such an emergency'. Excuse for the statutory violation was not pleaded.
Special Issues inquiring into 'emergency' and 'excuse for being on the wrong side of the road' were neither requested by defendant nor submitted by the trial judge. No one objected to the court's charge.
The collision occurred on Highway 35, in Matagorda County, Texas, in the afternoon of September 15, 1969. The highway is asphalt surfaced, consists of two lanes with an improved shoulder adjoining the outside of each lane, and, in the area of the accident, is straight and over flat terrain. The weather was clear. The surface of the highway was dry. Immediately preceding the collision, plaintiff was proceeding west on the highway at about 55 m.p.h. and Gonzalez was proceeding east at about 60 m.p.h. Each was driving on his respective half of the roadway. As the two vehicles were approaching each other, Gonzalez's pickup weaved back and forth on the highway. When the vehicles were very close to each other, Gonzalez made a hard brake application. The pickup then skidded sideways to the left, crossed to the left of the center of the highway, turned broadside and collided with plaintiff's car. The point of impact was on the improved shoulder adjacent to plaintiff's car. of the roadway.
Gonzalez was accompanied by three men. Two were riding in the cab with him and the other was riding in the back of the pickup. None of the three testified at the trial. Gonzalez stated that when he was about four hundred feet from plaintiff's car, he had the feeling that something had gone wrong with the rear end of the pickup. He 'thought' and 'assumed' that the right rear tire had gone flat, but he did not hear air escaping from a tire. He said that the pickup then 'veered to the right' and 'when it went to the right I pulled it back to the left'. At the same time he noted that there was a deep ditch to his right. He was aware of plaintiff's approaching car and was fearful of a collision with it. When asked if the pickup crossed over the lefthand side of the highway on more than one occasion just before the accident, he replied:
He further testified
'Q Were you still upon the pavement when you made a hard brake application?
A Yes, sir.
Q Were you on your side of the road when you made a hard brake application?
A Yes, sir.
Q Before you made the hard brake application had your pickup truck been on the left side of the road?
A No, sir.'
'Q Did you not apply your brakes until after you had pulled it back to the left?
A When I seen this car very close I applied my brakes.
Q And, did you apply your brakes hard at that time?
A Yes, sir.
A And was that the first time you had applied your brakes?
A First time.
Q Was the front end of your car on your side of the road when you made the hard brake application?
A Yes sir.
Q And going in a straight line?
A I was having trouble. It was weaving.'
Photographs show that the pickup laid down rubber tiremarks as it skidded broadside and crashed into plaintiff's car. They began at a point in the middle of Gonzalez's lane of traffic and extended diagonally to the scene of the accident. They grew wider as they approached the site of the collision. Somewhere along the path of the tiremarks the rim of the right rear tire started dragging. The exact beginning place was not established by the evidence, but the rim was dragging as the pickup crossed the center of the highway just before it hit plaintiff's car.
Article 6701d, Vernon's Ann.Civ.St., Sec. 52, p. 389, omitting the four exceptions, none of which are applicable to the present case, reads as follows:
'Upon all roadways the driver of a vehicle shall drive upon the right half of the roadway, except as follows:'.
Defendant contends that the violation of Article 6701d, § 52, was excusable in that Gonzalez was unable to control the pickup through no negligence on his part because of a sudden deflation of its right rear tire. It asserts that it is entitled to judgment under the rule announced in Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App.--San Antonio 1952, writ ref'd n.r.e.), which it says was reaffirmed in Hammer v. Dallas Transit Company, 400 S.W.2d 885 (Tex.Sup.1966). It argues that since evidence raises the issue of excuse, the jury finding that Gonzalez was not negligent excuses the violation.
Plaintiff's contentions are, first, there is no evidence raising the issue of excuse for the violation of the statute, and, second, even if there is some evidence of such violation, legal excuse therefor was not established by the evidence as a matter of law or by a finding of fact. In connection with his first contention, plaintiff relies on Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.Sup.1972); in connection with his second, he relies on Christy v. Blades, 448 S.W.2d 107 (Tex.Sup.1969), and on the Impson case.
Excuse was not defined in either Phoenix, Hammer or Christy, but the rule in each of those cases required the party violating the statute to present some legally substantial excuse or justification. The Supreme Court, in Impson v. Structural Metals, Inc., supra, addressed itself to the sufficiency of the excuse. It set out some of the criteria to be followed in determining whether evidence that has been submitted is sufficient to raise a jury question regarding excuse. The Court approved the general treatment of legally acceptable excuse as set out in the Restatement of Torts, Second (1965) § 288A. In discussing the Restatement view, the Court indicated that a blowout of a tire would constitute a legally acceptable excuse for the statutory violation because the driver is then confronted with an 'emergency not due to his own misconduct'. The same holds true with respect to 'a sudden deflation of a tire'. However, that is so only where the sudden deflation (or blowout) itself causes the emergency and the vehicle is responding to that emergency at the time and place of the collision.
There was no blowout of a tire. Defendant admits this in its brief. It is undisputed that the right rear tire was found to be deflated after the accident, but the tire itself was intact.
There is no proof or finding that the pickup moved to the wrong side of the road just prior to the accident because of any emergency caused by a sudden deflation of the right rear tire. Neither Gonzalez nor anyone else testified that the tire suddenly went flat at any specific time or place other than the tire was found to be in a deflated condition after the collision had already occurred. The deflation could have been sudden or it could have been gradual. It could have taken place immediately before the pickup first veered to the right, or it could have happened just prior to or simultaneously with the application of the brakes, or it could have occurred while the vehicle was skidding and turning broadside. There is no evidence that the rim of the right rear tire began dragging at the place on the highway where Gonzalez first detected that something was wrong with his vehicle (when he 'thought' he had a flat tire), or when the vehicle first veered to the right, or when he pulled it back to the left. Admittedly, the pickup was out of control when it crossed over into plaintiff's lane of traffic just prior to the collision, but to hold that the evidence showed that the vehicle was at that time reacting to a suddenly deflated tire would amount to a holding based on nothing more than surmise and conjecture.
The testimony of Gonzalez that he was 'having trouble' and the pickup was 'weaving' at the time he made a 'hard application' of the brakes does not constitute probative evidence of legally acceptable excuse within the purview of Impson. The 'weaving' and the troubles that ensued are attributable to the manner in which he steered the...
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L. M. B. Corp. v. Gurecky
...Gonzalez was guilty of negligence per se, rendered judgment for plaintiff Gurecky and the court of civil appeals affirmed the judgment. 489 S.W.2d 647. We granted the application for writ of error because the judgments of the courts below were ruled by our decision in Christy v. Blades, 448......