R. T. Herrin Petroleum Transport Co. v. Proctor

• Court: Texas Supreme Court
• Writing for the Court: NORVELL; CALVERT; SMITH
• Citation: R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (Tex. 1960)
• Decision Date: 13 July 1960
• Docket Number: No. A-7304,A-7304
• Parties: R. T. HERRIN PETROLEUM TRANSPORT CO. et al., Petitioners, v. Laura PROCTOR, Respondent.

Page 422

338 S.W.2d 422

161 Tex. 222

R. T. HERRIN PETROLEUM TRANSPORT CO. et al., Petitioners, v. Laura PROCTOR, Respondent.

No. A-7304.

Supreme Court of Texas.

July 13, 1960.

Rehearing Denied Oct. 14, 1960.

James Pearson, Sweetwater, for petitioners.

Mays, Leonard & Moore, Sweetwater, Leachman, Gardere, Akin & Porter, Dallas, for respondent.

NORVELL, Justice.

This action arose from a truck-automobile collision which took place on State Highway No. 70 about four miles south of Sweetwater, Texas at approximately 7:00 o'clock on the evening of August 27, 1957. Orval H. Proctor and a woman companion were riding in the automobile. Both were killed. Mrs. Laura Proctor, the mother of Orval H. Proctor, a single man with no children, brought this action for wrongful death under Article 4675, Vernon's Ann.Tex.Stats. As defendants, she named Curtis Cleven Barron, the driver of the truck, and his employer, R. T. Herrin Petroleum Transport Company, the owner of the truck. Judgment in the trial court was for the defendants upon jury findings that Orval H. Proctor was guilty of contributory negligence. The Court of Civil Appeals reversed the judgment and remanded the cause for another trial upon two holdings: First, the trial court erred in failing to submit plaintiff's special requested issue No. 1 which contained several questions embracing the theory of discovered peril, and, secondly, the trial court erred in admitting testimony concerning a partially filled whiskey bottle handed to the Sheriff of Nolan County while he was at the scene of the collision, aiding in the investigation of the accident. Proctor v. R. T. Herrin Petroleum Transport Co., Tex.Civ.App., 322 S.W.2d 42.

Application for writs of error were filed by both appellant and appellees in the Court of Civil Appeals and were granted by this Court. As the parties occupy dual positions in this Court, we will use the trial court designations or refer to them by name.

In her application for writ of error, plaintiff contends that the jury's answers to certain issues submitted to the jury, when considered in connection with the undisputed facts disclosed by the record, entitle her to judgment under the discovered peril theory despite the jury's finding that Proctor was contributorily negligent.

In our opinion the present record does not present a case of discovered peril. This holding disposes of plaintiff's assertion, above stated, that she was entitled to judgment upon the jury's answers to the issues submitted to it as well as her contention that the trial court erred in refusing to submit her special Issue No. 1 embracing the theory of discovered peril. However, the holding of the Court of Civil Appeals, upon the evidence point involving the whiskey bottle was correct and necessitates an affirmance of the judgment of the Court of Civil Appeals. Upon another trial the district court will be governed by this opinion.

At the outset of our discussion of the case, it should be pointed out that from the plaintiff's standpoint, this case was tried upon alternative and somewhat conflicting theories, a situation which would unlikely develop in any suit except a death case or one in which neither the driver nor an occupant of one of the colliding vehicles was able to testify. The conflict of theory lies in the assertion upon the negligence-contributory negligence feature of the case that the driver of the truck was propelling his vehicle upon the highway at a highly dangerous and excessive rate of speed, while plaintiff's decedent was free from negligence contributing to the collision. On the other hand, it is contended upon the discovered peril feature of the case that the truck driver's speed was such that he had adequate time to prevent the collision by the means at his disposal despite the decedent's negligence. In the usual case where both the drivers of the colliding vehicles testify, the conflict of theory disclosed by the present record does not appear as the usual thing, but we would have a case of excessive speed by the defendant (from the standpoint of the plaintiff's testimony) or the opposite, that is, moderate speed allowing time for action on the part of the defendant to prevent the collision. In other words, the parties by their own testimony would generally be committed to consistent rather than conflicting theories. The death of Proctor and his companion worked a change in the usual situation.

It should also be borne in mind that as this case will have to be retried because of the admission of improper testimony, what we say concerning the applicability of the doctrine of discovered peril is based upon the record now before us and is for the guidance of the trial court in the event (which at the present time seems probable) that the testimony upon a retrial will be substantially the same as that disclosed by the present record. However, different or additional evidence may call for the application of different rules of law.

The discovered peril contentions raise a comparatively narrow issue. In Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 this Court said:

'The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. White v. White, 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Fitz-Gerald v. Hull, Tex.Sup., 237 S.W.2d 256.'

We are here concerned with permissible 'reasonable inferences' under the rule above stated.

In the language of the special issues employed in submitting discovered peril cases in Texas, we say that one who discovers another in a perilous position and fails to use the means at his disposal to prevent injury is liable for the injuries resulting from such failure. Upon discovery of peril, a new and immediate duty arises to prevent injury and it is the breach of that duty which gives rise to liability.

Plaintiff's requested special issue No. 1 consisted of six interrogatories, lettered A to F inclusive. For our purposes here it may be considered that the evidence would compel a finding that (A) Proctor was in a perilous position shortly before the collision; (B) that Barron, the driver of the truck, discovered that Proctor was in a perilous position, and (C) realized that Proctor would probably not free himself from such perilous position in time to avoid injury.

The next question contains the controlling inquiry in this case:

'(D) Do you find from a preponderance of the evidence that after Defendant discovered the peril of Orval H. Proctor, if you have so found, and realized that Orval H. Proctor probably would not free himself from such perilous position in time to avoid injury, if you have so found, within such time and distance that by the exercise of ordinary care in the use of all the means at his command consistent with the safety of himself and his truck, he, the Defendant, could have avoided the collision?'

Parts E and F of requested special issue No. 1 were conditioned upon an affirmative finding to Part D and inquired as to negligence and proximate cause.

The collision occurred upon a stretch of highway running approximately north and south between two curves about 1,000 feet apart. The truck involved consisted of a tractor-trailer combination. The tractor was equipped with a Diamond T diesel motor, with single wheels in front and dual wheels in the rear. A total of six tires were on the tractor. The trailer consisted of a large gasoline tank having a capacity of 5,980 gallons mounted upon four sets of dual wheels-eight tires. This trailer was 32 feet in length which added to the length of the tractor-ten feet-made an overall length of 42 feet. There were fourteen tires upon the ground mounted upon eight wheels. All wheels were equipped with air brakes. The car in which Proctor was riding was a 1954 Plymouth 4-door sedan. He was traveling in a southerly direction. The truck was empty and traveling in a northerly direction toward Sweetwater. Shortly before the collision the left front tire on the Plymouth blew out or suddenly went flat which made it impossible for Proctor to control the Plymouth car. For a time, although not at the instant of collision, the car as it approached the truck was over on the east or Proctor's left-hand side of the road. The undisputed physical evidence in the case, including photographs of the truck and car taken after the collision, show that the vehicles met with a terrific impact. Two of the photographs admitted in evidence are shown herewith The only eye witness to the collision was Curtis Barron, the driver of the truck. The only other evidence which gives an indication of how the collision occurred was the testimony of Herman Seale, State Highway Patrolman, who made a complete investigation of the collision. In connection with Mr. Seale's testimony numerous photographs were introduced in evidence.

Barron was an interested witness and his testimony was not binding upon a jury. Ford v. Panhandle & Santa Fe. Ry. Co., 151 Tex. 538, 252 S.W.2d 561. However, testimony from an interested witness, while it need not be accepted as true by a jury, is not evidence that the exact opposite of what the witness said is true. There must be some circumstance supporting the conclusion that a situation opposite to that depicted by the witness actually existed.

Barron testified as follows:

'Q: All right, Mr. Barron, would you describe the accident, in your own words, to the jury, about where you were? A: Where I was?

'Q: Yes. When you discovered Mr. Proctor coming up. A: Well, it was on that hill, coming out there south of Sweetwater, and I was coming this way, and I was coming around a little curve. He was coming to meet me. He was headed north, and I didn't pay much attention to him...