Osborne v. English

• Decision Date: 16 July 1970
• Docket Number: No. 15592,15592
• Citation: 458 S.W.2d 209
• Parties: Mamie Adele OSBORNE, Appellant, v. Emogene K. ENGLISH, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 209

458 S.W.2d 209

Mamie Adele OSBORNE, Appellant, v. Emogene K. ENGLISH, Appellee.

No. 15592.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

July 16, 1970.

Rehearing Denied Oct. 8, 1970.

Levy, Levy, Schwab & Coughlin, Lawrence M . Coughlin, Galveston, for appellant.

McLeod, Alexander, Powel & Apffel, Ervin A. Apffel, Jr., Galveston, for appellee.

PEDEN, Justice.

This is an appeal from a take-nothing judgment based on jury findings in a personal injury case that arose when Mrs. English accidentally drove her automobile through an exterior wall and into a restaurant, injuring the plaintiff-appellant, Mrs. Osborne.

In response to special issues the jury found 1) that the defendant failed to make such application of her brakes as would have been made by a reasonably prudent person under the same or similar circumstances, but the jury did not find 2) that such failure was a proximate cause of the incident in question. It did not find that the defendant was negligent in any other manner, and it found 11) that the accident in question was the result of an unavoidable accident. It found that the plaintiff's damages amounted to $6074.

No evidence was offered to show that the plaintiff was negligent, and no contributory negligence issues were submitted to the jury.

The appellant's primary position on this appeal is that there was no probative evidence in the trial court to support the jury's negative finding to Special Issue No. 2, that there was 'insufficient evidence' and the jury finding on the issue was against the great weight of the evidence. Her first point states that the trial court erred in failing to hold as a matter of law that appellee's (defendant's) negligence was a proximate cause of the incident in question.

The jury's negative answer to Special Issue No. 2 does not constitute a finding that the defendant's negligence was not a proximate cause of the incident; it merely amounts to a failure or refusal by the jury to find from a preponderance of the evidence that the defendant's negligence was a proximate cause of the incident, and means, in law, that the plaintiff failed to carry her burden of proving that it was. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966).

The investigating police officer testified that he had found no skid marks or other evidence at the scene to indicate that any attempt had been made to stop the car before it hit the building. He said he checked the accelerator and brakes after the car was backed out of the building and found them to be working normally. He expressed the opinion that the defendant 'evidently stepped on the gas instead of the brakes.'

Mrs. English testified that she had sold some draperies to a customer in Galveston and had hired Mr. Howard Willis to hang them in the customer's home. She and Mr. Willis, riding in separate cars, had driven into the parking area of a drive-in restaurant and parked, planning to eat lunch in their cars, but then decided to drive on up to the front of the restaurant, park there, and walk into the restaurant for their lunch. Mr. Willis drove over to the restaurant first, and then she drove up beside him, expecting to park her car beside his. She testified that as she was approaching the restaurant, she throught she was going at about ten miles per hour, and her car started accelerating although her foot was not on the gas pedal. She applied her brakes when she was, she thought, about ten or twelve feet from the restaurant building. She was not certain as to the distances. Although she pushed with all her might on the brakes, she then realized that her motor was racing and that her car was out of control. It ran into the restaurant, and she didn't know what stopped her. She was positive that she did not hit the accelerator with her foot. Her foot was still on the brake when a man put his hand in her window, while her motor was still racing, and turned off the ignition switch of her car. She is 67 years of age.

Mr. A. J. Steel testified that he was in the restaurant when the car came into it. The car's motor was still racing, its rear wheels were spinning and it was moving forward very slowly, pushing steam tables ahead of it, until he turned off its ignition and took the defendant out of it. The tile on the floor had burn marks in it.

Mr. Tony Socias was shown to be qualified as an expert automobile mechanic. He testified that he backed the defendant's car out of the restaurant after the accident. He said he worked the accelerator up and down a few times with his foot before starting the motor. He observed no defect in the accelerator or brakes and testified that under the circumstances found in this case he would not expect to. He said that if a defect in either of them had caused the accident it would still be apparent when he arrived at the scene and that turning off the ignition would not correct any mechanical problem. He admitted on cross examination that the accelerator might temporarily catch on the floor mat. He said that 1960 Ford had no carburetor linkage, just a straight rod from the accelerator to the carburetor. He testified that if the accelerator on an automobile is stuck while the brakes are being applied, the front wheels will lock but the back wheels will still turn because 'the accelerator of that motor is greater than the braking power of the back wheels.'

Mr. Willis testified that when the defendant drove up beside him to park at the restaurant he noticed nothing unusual about her speed or the sound of her motor but that as her car moved past him...