Liberty Film Lines v. Porter

• Decision Date: 29 January 1941
• Docket Number: No. 2344-7583.,2344-7583.
• Citation: 146 S.W.2d 982
• Parties: LIBERTY FILM LINES, Inc., v. PORTER et ux.
• Court: Texas Supreme Court

146 S.W.2d 982

LIBERTY FILM LINES, Inc., v. PORTER et ux.

No. 2344-7583.

Commission of Appeals of Texas, Section A.

January 29, 1941.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by W. W. Porter and wife against Liberty Film Lines, Incorporated, to recover damages for personal injuries sustained in an automobile collision. Judgment for defendant was reversed by the Circuit Court of Appeals, which rendered judgment in favor of plaintiff for the amount of damages found by the jury, 127 S.W.2d 480, and defendant brings error.

Judgment of the Court of Civil Appeals reversed; judgment of the trial court affirmed.

The dissenting opinion of Young, J., referred to by the court follows:

This record presents facts commonly attendant upon any case of automobile collision —nothing to set it apart from the typical accident, occurring all too frequently on highly traveled thoroughfares, such as the Dallas-Fort Worth pike. The jury found that plaintiff Porter and defendant's driver were each negligent in several respects, proximately causing the collision, and I can find no undisputed facts, or unique circumstances under which this phase of the jury verdict, arrived at upon conflicting evidence, should be set aside and ignored. Issues involving Mr. Porter were that, in turning to his left, he failed to run his motor vehicle beyond the center of the intersecting crossroad and the pike; that before turning his motor vehicle to the left at said time and place, he failed to look behind him along said main pike in an easterly direction for approaching traffic; and that he failed to look eastwardly, or back along said pike, until after he had turned his vehicle crosswise thereon. The jury found affirmatively that all of these failures on the part of Mr. Porter proximately contributed to cause the injuries complained of, but the majority opinion substitutes negative answers in this connection and frees plaintiffs of all fault, holding the negligent conduct of defendant's driver —principally speed—to be the sole cause of the collision by judicially determining that speed was a proximate cause in the absence of a jury finding to such effect. (Italics mine.)

Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts—the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action. Chief Justice Hickman, while on the Eastland Court, tersely stated the principle to which I refer, in Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744, 745: "Undoubtedly, facts might exist in a given case which would be so conclusive in their nature as to establish, as a matter of law, that a certain act of negligence was the proximate cause of an injury; but such cases are indeed rare, and an examination of the authorities will reveal but few instances in which facts have been so interpreted."

I find no "undisputed facts" in the record that warrants the majority in holding the negligence of appellee's driver as controlling and the contributory negligence of plaintiffs as evidentiary, save, possibly, in the position of the vehicles after the impact. The particular traffic lane occupied by Mr. Porter before his turn to the left was disputed; whether he had previously turned to the right for a bus to pass in the same direction; the distance involved in his wide angle to the left before reaching the intersection; the position of defendant's truck on the highway and its speed before both cars moved leftwardly to the point of contact; the condition of oncoming traffic to the rear, or eastwardly—all were but verbal pictures from different witnesses, illustrating the futility of ever determining the true or undisputed facts concerning the phenomena of any collision between automobiles.

The general rule inversely stated is, that the jury's province is invaded in holding a given act of negligence not to be the proximate cause of an injury as a matter of law, unless it appears that reasonable minds could not differ in the manner of the negligent party's "foreseeability"; in other words, that the plaintiffs ought not to have foreseen or anticipated that the injury complained of, or one of similar nature, would result from the negligent act. Jones v. Gibson, supra; 30 Tex.Jur. Negligence, Sec. 63, p. 724.

If different conclusions may reasonably be drawn from the particular act or from the whole of the evidence, the question of causation is for the jury. 45 C.J. Negligence, Secs. 876-886. Bearing in mind the court's charge on proximate cause, the majority opinion holds, in effect, that Mr. Porter should not have foreseen, as a matter of law, that his failure to keep a proper lookout on the Fort Worth pike would result in accidental injuries; or if he had looked back at the times inquired about, or had gone beyond the center of the crossroad intersection before left-turning, still the place of the collision would have been the same. An examination of this record convinces me that a wide latitude exists in which reasonable minds might differ as to whether the same collision would have followed a proper lookout by Mr. Porter; on the other hand, the inference is reasonable that there would have been no resulting accident at all. Also, under all the circumstances, there is abundant latitude for a great difference of opinion as to the relative position of plaintiffs' car. Would it have been at the place of the collision or elsewhere, had he moved beyond the center of the intersection before turning? Or would any untoward result have followed this latter movement of plaintiffs' vehicle? The above but illustrates, to my satisfaction at least, the changed conditions that could reasonably have existed, absent the contributory negligence of plaintiff, and but demonstrates that proximate cause incident thereto was a very material jury question and decisive of their cause of action.

No automobilist on the Dallas-Fort Worth pike need be endowed with the "prophetic ken" referred to by Judge Gaines in the Bigham case (Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162), to foresee, or actually know, the dire consequences that would surely follow a total failure to keep a proper lookout to the rear, before attempting to turn across that broad thoroughfare of continuous and fastmoving traffic. "The question is not whether the fault of the plaintiff caused the injury, but whether it contributed to it." Houston & T. C. R. Co. v. Smith, 52 Tex. 178. "It is not necessary that plaintiff's contributory negligence be an active, co-operative link in the chain of events producing the injury. Plaintiff's negligence may be wholly disconnected with that of the defendant and may be of a negative character, such as lack of vigilance." Alexander v. Missouri, K. & T. R. Co., Tex. Civ.App., 287 S.W. 153, 155.

The majority holding, that the negligent acts and omissions of plaintiffs were immaterial, could not have been a proximate contributing cause of the collision, and were without causal connection, is directly in conflict with the following cases of almost identical facts: Larson et al. v. Whitten, Tex.Civ.App., 111 S.W.2d 736, 737, error dismissed held in part: "The driver of the car contemplated making, and did make, a left-hand turn directly in front of the on-coming truck. According to his own testimony, he did not see the truck from the time it was a quarter of a block away until it was immediately upon him as he turned in front of it. * * * Under such circumstances, ordinary care required plaintiff, who knew that he was about to make a turn which would place him in a place of danger, to keep a lookout for approaching vehicles. * * * In view of the fact that plaintiff had the same opportunity to observe the approaching truck as the driver of the truck had to observe the conduct of plaintiff; the fact that plaintiff knew that he was going to make a left-hand turn at the street intersection which would require him to cross the path of the truck; and his own testimony that he saw the truck a quarter of a block away as he undertook to make the turn, and not again until it was immediately upon him; coupled with the fact that he was an interested witness in his own behalf, and his care in the matter referable to his own testimony, were clearly sufficient, we think, to require submission of such issue to the jury."

Ball et al. v. Youngblood, Tex.Civ.App., 252 S.W. 872, 873, writ of error denied, 114 Tex. 582, 278 S.W. 1115, is here quoted: "Appellee seeks to avoid the effect of this contributory negligence by pleading and proof that the defendant's car was being driven in a reckless manner, such as to constitute gross negligence. * * * it is held that the doctrine of comparative negligence does not obtain in this state, and this holding has not...