Mesa Trucking Co. v. King

• Decision Date: 09 March 1964
• Docket Number: No. 7317,7317
• Citation: 376 S.W.2d 863
• Parties: MESA TRUCKING COMPANY et al., Appellants, v. Reba KING et al., Appellees.
• Court: Texas Court of Appeals

Page 863

376 S.W.2d 863

MESA TRUCKING COMPANY et al., Appellants, v. Reba KING et al., Appellees.

No. 7317.

Court of Civil Appeals of Texas, Amarillo.

March 9, 1964.

Rehearing Denied April 6, 1964.

Crenshaw, Dupree & Milam, Splawn & Maner, Lubbock, Rountree, Renner & Snell, Lamesa, for appellants.

New & Townes, Denver City, Evans, Pharr, Trout & Jones, Lubbock, for appellees.

CHAPMAN, Justice.

This opinion is announced in lieu of our opinion of February 3, 1964.

This is a common law damage suit growing out of a head-on collision between a Mack Truck-Tractor and trailer weighing 72,000 pounds loaded with grain and a panel truck containing automobile parts weighing eight to nine thousand pounds.

Reba King and her three minor children, suriving wife and children respectively of Ralph Eugene King, deceased driver of the panel truck killed in the collision and Jimmy Webb, owner of Webb Auto Supply, employer of King are appellees. Mesa Trucking Company, lessee of the Mack Truck, Truman O'Neil, d/b/a Lamesa Mack Sales, owner of the Marck Truck and Howard M Linton, driver thereof are appellants.

The case was tried to a jury, which found Howard Linton guilty of failing to keep a proper lookout; of failing to keep his truck under proper control; of failing to yield at least one-half of the main traveled highway to king; of failing to turn the truck-tractor to the right in time to avoid the collision; and that he drove the truck to his left across the center lane of the highway.

The jury found each of the above acts constituted negligence on the part of Linton and a proximate cause of the collision.

The jury found King failed to keep a proper lookout and that such failure was a proximate cause of the collision. They acquitted him of failure to remain on his side of the highway. They also acquitted him of being under the influence of intoxicating liquors, a contention made by appellants. Upon a motion by appellees to disregard the jury's findings of failure of King to keep a proper lookout and that such failure was a proximate cause of the collision, the trial court sustained the motion and awarded judgment for appellees. It is from such judgment appeal is perfected to this court.

The first two points assert error of the court in sustaining the motion to disregard issues 22 and 23 concerning King's failure to keep a proper lookout, which was a proximate cause of the collision, and entering judgment for appellees.

In order to sustain the trial court's action in setting aside the jury finding of improper lookout and proximate cause based thereon, we must hold there was no probative evidence to support the two issues or the issue on proximate cause. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560.

The only living eyewitness to the collision was appellant Linton, the driver of the heavy truck. He testified there was nothing unusual in the manner in which the driver of the panel truck and he were approaching each other until they were within 70 or 75 to one hundred feet of each other and that he was driving between 40 and 45 miles per hour. We find no direct testimony other than that just stated as to the speed of the panel truck. However, the record shows Mr. King usually returned home to Lubbock between 7:30 and 8:30. His wife worked at a hospital at night and he was supposed to be home that evening to keep the children. The testimony shows he left Plains to go to Broncho to call on a new service station operator between 5:30 and 6:00 the afternoon before the collision that night and that the collision about six miles west of Plains occurred between 8:00 and 9:00 that night on his way from Broncho back to his home in Lubbock. The Deputy Sheriff, Olan Heath, testified it was about straightup nine o'clock p. m. when he was notified in Plains of the collision. There being no eyewitnesses to the collision other than the parties, someone had to observe the wreckage after it happened then drive into town and report it. Therefore, we believe it could be inferred from the record that the collision happened sometime between 8:15 and 8:45. Since he was between an hour and two hours late and since Mr. Linton testified there was nothing unusual in the manner of his approach, we believe the trial court could have impliedly found he was driving at least as fast as the big truck. We believe it fair to say that under the circumstances he ordinarily would be driving faster. If they were approaching each other at a speed of between 40 and 45 miles per hour and were between 75 and a hundred feet apart they would be approaching at 117.33 to 132 feet per second. Since Mr. Linton testified they were between 70 or 75 and one hundred feet of each other before anything unusual happened, there would have been less than a second for Mr. King to react and take evasive action in an attempt to escape the collision.

The courts have held in effect that time and distance are important matters to consider in passing on the question of setting aside lookout findings. Jaynes v. Lee, Tex.Civ.App., 306 S.W.2d 182 (N.W.H.); Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 78 (first Supreme Court opinion); Continental Bus System v. Biggers, Tex.Civ.App., 322 S.W.2d 1 (N.R.E.). The last cited case was the last opinion of the Court of Civil Appeals in Biggers.

In the second opinion of the Supreme Court in the Biggers case, 157 Tex. 351, 303 S.W.2d 359, the majority said if it could agree with the premise that the Ford entered the lane of the bus less than two seconds before the collision it might find justification for setting aside the jury's findings on failure of the bus driver to keep a proper lookout. In the first opinion in that case the majority said: 'We think there can be no doubt that if the Ford crossed into the traffic lane in such a short time the bus driver could not put on his brakes, or slow his speed before the bus was on the Ford car, then the failure on the part of the bus driver to keep a proper lookout * * * could not possibly be a proximate cause of the collision.' After the case was sent back to the Court of Civil Appeals that court in its second opinion which was N.R.E.'d by the Supreme Court said: 'We adhere to our original holding that there is no evidence to show failure to keep a proper lookout was a proximate cause of the collision,' this despite the fact that the time element in that case considered in the light most favorable to the verdict was more than three seconds from the time the Ford entered the lane of the bus before the collision. Biggers, supra, 303 S.W.2d 359, 366.

The only evidence in this case upon which a failure of the deceased driver to keep a proper lookout which was a proximate cause of the collision could be based is that of appellant Linton. His testimony is completely and irrevocably inconsistent with all the material physical facts. He testified the panel truck came over into his lane of traffic within a distance of between 70 or 75 feet and one hundred feet; that he (Linton) cut hard to the right with his truck-tractor; that his right front wheel was four to six feet off the right side of the pavement at the time of impact; and that he was then going in a northwestern direction on a west bound road and continued about the length of his truck and trailer before he stopped.

The physical facts show beyond question that the large truck-tractor turned over on its right side with its left wheels suspended in the air; that its right wheels on the pavement were about three feet from the center stripe and if righted its left wheels would be over four or five feet across the center stripe and into the south land of traffic. The panel truck after impact was still over on its proper side of the highway, though crushed by the weight of the large truck. Mr. Linton testified the trucks first met bumper to bumper, that the panel truck kept on down the side of his truck hitting his driver wheels and then the bed of the trailer. These physical facts are proved without the testimony of the Deputy Sheriff, Olan Heath, who was the investigating officer at the scene a few moments following the collision. His testimony, though strenously objected to was, we believe, admissible. That question will be considered fully in another point. He placed the point of impact on the south side of the center stripe with the panel truck going east and the large truck going west. He said the location of the grain on the highway and the debris resulting from the collision showed the large truck continued west about 54 feet and the panel truck east about 20 feet after the impact. The chassis, undercarriage, axle and wheels of the panel truck were all on the south, the deceased's proper side of the center stripe. Another witness testified the grain escaped from the front gate of the trailer and the testimony shows it was strewn from approximately the position placed by Mr. Heath as the point of impact to where the trailer turned over, the bulk of it naturally being to the right side of the trailer after it turned over on its right side.

It has been held that testimony which is contrary to undisputed physical facts will not raise an issue. Holly v. Bluebonnet Express Company, Tex.Civ.App., 275 S.W.2d 737 (N.R.E.); Talley Transfer Co. v. Cones, Tex.Civ.App., 216 S.W.2d 604 (N.R.E.). When appellant Linton was questioned on the witness stand about his theory of the collision as it related to the physical facts he frankly stated he could not explain his theory with such facts.

In a deceased pedestrian case involving a question of proper lookout our Supreme Court in Boaz v. White's Auto Stores, 141 Tex. 366, 172 S.W.2d 481, has held:

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