McDonald v. Brennan
| Decision Date | 05 February 1986 |
| Docket Number | No. 08-84-00442-CV,08-84-00442-CV |
| Citation | 704 S.W.2d 136 |
| Parties | Vernon Ford McDONALD, Appellant, v. Deborah BRENNAN, Appellee. |
| Court | Texas Court of Appeals |
Gregory B. Pine, El Paso, for appellant.
Jack Brewster, El Paso, for appellee.
Before WARD, OSBORN and SCHULTE, JJ.
This appeal is from a take nothing judgment based upon jury answers in a personal injury case arising out of an automobile rear end collision. We affirm.
On February 4, 1983, Vernon McDonald was driving his 1982 Oldsmobile in the parking lot adjoining the Sunland Park Race Track in New Mexico. He was driving about five to ten miles per hour as he looked for a parking space. While proceeding forward, his car was struck in the rear by a 1969 Chevrolet driven by Deborah Brennan. She had just stopped near the grandstand to release a passenger and was proceeding to an exit from the parking lot. She estimated her speed at ten to twenty miles per hour and said when she was about two car lengths from the back of the Oldsmobile, she applied her brakes in a normal manner to reduce her speed. She said the brake pedal went to the floor, but there was no slowing of her car and the front of her automobile hit the back left side of the McDonald Oldsmobile. Both cars sustained extensive damage. The jury made the following findings with regard to the conduct of the two drivers.
Deborah Brennan Negligence Proximate Cause
--------------------- ---------- ---------------
Proper Lookout Yes No
Application of Brakes Yes No
Turning No Yes
Speed Yes No
Vernon McDonald Negligence Proximate Cause
--------------------- ---------- ---------------
Proper Lookout No Yes
Manner of Stopping No Yes
In issue number three, which was conditionally submitted based upon the jury finding the negligence of both parties to be a proximate cause of the accident, they answered Barbara Brennan "100%" and Vernon McDonald "0%", even though they had not found the negligence of either party to be a proximate cause of the accident.
The Appellant presents seven points of error in which he asserts the proximate cause findings on "lookout," "brakes" and "speed" were established as a matter of law and, in the alternative, that each of the "no" answers on proximate cause was against the great weight and preponderance of the evidence. We pass on these issues under rules set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The net effect of the jury verdict in this case is that the jury found the accident was an unavoidable accident. The court instructed the jury that " 'unavoidable accident' means an accident that is not proximately caused by the negligence of any party to it." In this case, the jury failed to find that the negligence of either party proximately caused the accident. Under the holding in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971) and the subsequent amendment to Rule 277, Tex.R.Civ.P., which prohibits inferential rebuttal issues, there can be no affirmative answer by the jury to express its holding on such a defensive issue, even though it is raised by the evidence and the jury is instructed on the issue in the court's charge. Thus, inferential rebuttal answers result not from affirmative findings, but from a failure to find affirmatively on other issues. See: Herrera v. Balmorhea Feeders, Inc., 539 S.W.2d 84 (Tex.Civ.App.--El Paso 1976, writ ref'd n.r.e.).
An unavoidable accident is present when an event occurs which was not proximately caused by the negligence of any party to the event. Yarborough v. Berner, supra; Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Hyatt Cheek Builders-Engineers Company v. Board of Regents of University of Texas System, 607 S.W.2d 258 (Tex.Civ.App.--Texarkana 1980, writ dism'd). An unavoidable accident can result from weather conditions which cause an accident. Riley v. Crossley, 383 S.W.2d 427 (Tex.Civ.App.--Houston 1964, no writ); Blasberg v. Cockerell, 254 S.W.2d 1012 (Tex.Civ.App.--Amarillo 1952, writ ref'd n.r.e.). It can result from an obstacle that might obstruct a driver's view. Vergauwen v. Parsons, 294 S.W.2d 863 (Tex.Civ.App.--Waco 1956, no writ). It can also result from a mechanical or equipment failure. Thurman v. Chandler, 125 Tex. 34, 81 S.W.2d 489 (1935); Otto v. Sellnow, 233 Minn. 215, 46 N.W.2d 641 (1951); Lively v. Atchley, 256 S.W.2d 58 (Tenn.App.1952).
In this case, Deborah Brennan filed an affirmative pleading that the incident was an unavoidable accident. She testified that she purchased the car two days before the accident. The prior owner did not advise her that the brakes were defective. Both she and her husband had driven the car without any problems with the brakes. On the day of the accident, she had no problems with the brakes prior to this accident. There was no proof that the brakes did not fail (no skid marks) and no evidence of any test made on the car or inspection of the brake system after the accident. Where the pleadings and the proof raised a fact issue, such inferential rebuttal issue was required to be submitted to the jury by a proper instruction. Yarborough v. Berner, supra.
The effect of the jury's...
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...to avoid an automobile pulling into its path and struck another northbound driver's vehicle).Compare McDonald v. Brennan, 704 S.W.2d 136 (Tex.App.--El Paso 1986, writ ref'd n.r.e.) (holding instruction proper when plaintiff's car was rear-ended in a race track parking lot because the defend......
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Southwest Airlines Co. v. Jaeger
...Weitzul Const., Inc. v. Outdoor Environs, 849 S.W.2d 359, 365 (Tex.App.--Dallas 1993, n.w.h.); McDonald v. Brennan, 704 S.W.2d 136, 138 (Tex.App.--El Paso 1986, writ ref'd n.r.e.). Rule 277 of the Texas Rules of Civil Procedure prohibits the submission of inferential rebuttal questions in t......
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El Paso Refining v. Scurlock Permian Corp.
...Weitzul Const., Inc. v. Outdoor Environs, 849 S.W.2d 359, 365 (Tex.App.-Dallas 1993, writ denied); Mc-Donald v. Brennan, 704 S.W.2d 136, 138 (Tex.App.-El Paso 1986, writ ref'd n.r.e.). Inferential rebuttal issues are therefore only properly submitted to the jury in instruction form. We also......
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El Paso Refining v Scurlock Permian Corp.
...Weitzul Const., Inc. v. Outdoor Environs, 849 S.W.2d 359, 365 (Tex. App.--Dallas 1993, writ denied); McDonald v. Brennan, 704 S.W.2d 136, 138 (Tex. App.--El Paso 1986, writ ref'd n.r.e.). Inferential rebuttal issues are therefore only properly submitted to the jury in instruction form. We a......