Simmons v. Jackson, 2-82-151-CV
| Decision Date | 09 June 1983 |
| Docket Number | No. 2-82-151-CV,2-82-151-CV |
| Citation | 653 S.W.2d 935 |
| Parties | James SIMMONS, et ux. Julia Simmons Survivor of Pamela Sue, Appellants, v. Paula Jo JACKSON, Appellee. |
| Court | Texas Court of Appeals |
Norman Darwin, Norman Darwin & Associates, Fort Worth, for appellants.
Charles M. Bradshaw, Dallas, for appellee.
Before HUGHES, JORDAN and BURDOCK, JJ.
This appeal is from a take nothing judgment rendered by the trial court on a jury verdict in a wrongful death action brought against appellee herein for the death of appellant's seventeen year old daughter, Pamela Sue Simmons. Her death resulted from a one car accident in Tarrant County on August 28, 1980.
We reverse and remand.
On August 28, 1980, the deceased, Pamela Sue Simmons, was riding as a passenger in a 1971 Ford LTD automobile driven by appellee, Paula Jo Jackson, on Malaga Drive in the community of Lake Worth, Tarrant County, Texas. While maneuvering a long, gradual curve to the right, the automobile driven by appellee left the roadway, went 144 feet, hit a bush and overturned. Pamela Sue Simmons was thrown from the car during this time and the car turned over at least once, landing on top of her. She was apparently killed instantly and there was no evidence of any conscious pain and suffering.
The parents of Pamela Sue, appellants herein, brought this action to recover the economic losses incurred by the death of their child and for the grief, sorrow, loss of love, society and comfort sustained by them to the extent that their mental health had been damaged.
During the trial, the trial court, in accordance with the law at the time this case was tried, excluded from the jury's consideration any evidence of grief, sorrow, loss of love, society and comfort or damage to the mental health of the parents. This evidence was preserved by a bill of exceptions taken by appellants.
The trial court submitted questions to the jury which asked if Paula Jo Jackson was negligent in her speed, in the application of her brakes, in her lookout, or in her failure to keep her automobile completely upon the roadway of Malaga Drive. The jury answered no to each of these questions, and additionally found that appellants had suffered no pecuniary loss as a result of the death of their daughter.
We are asked in this appeal to set aside this jury verdict on the grounds that as a matter of law the evidence established some negligence on the part of appellee, or in the alternative that the jury's findings of no negligence were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. This requires a rather detailed review of the evidence found in this record.
At the outset, we recognize that both trial and appellate courts must be very cautious and slow in overturning a jury verdict in any case. Under our system of jurisprudence the jury is the finder of fact and is the one who views the witnesses, determines their credibility, and decides what the true facts are. Ordinarily, if the jury verdict is supported by sufficient evidence of probative force, it must stand. We cannot substitute our opinion for that of the jury and decide for ourselves what the facts are in any given case.
On the other hand, this court, as any appellate court, does have the authority, and in fact the duty, to carefully review all of the evidence in any case, and if the jury's findings and verdict are so against the great weight and preponderance of the evidence as to shock the conscience, or are manifestly wrong and unjust, to set aside the jury verdict and order whatever action is necessary under the circumstances. We think this is a case where we must do just that. See Burns v. Union Standard Ins. Co., 580 S.W.2d 650 (); Hammond v. Stricklen, 498 S.W.2d 356 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.).
In their first two points of error, appellants contend that the trial court erred in rendering judgment on the jury verdict because the evidence proved, as a matter of law, that appellee was negligent in the operation of her automobile, or, in the alternative that the finding of no negligence was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We sustain these two points of error.
On the evening of August 28, 1980, Pamela Sue Simmons and Paula Jo Jackson, after attending a high school pep rally, drove, in the 1971 LTD owned by Paula Jo's father, to the Pizza Hut in Lake Worth, where they stayed until about 10:30 or 11:00 p.m. They started to Pamela Sue's home, driving in an easterly direction on Malaga Drive which was described by Paula Jo as a "pretty narrow little winding country road". She testified that immediately before the fatal accident occurred she was driving between thirty miles per hour and forty miles per hour, although she admitted she could have been driving faster. She said she didn't think she was doing any more than forty five miles per hour.
Although Malaga Drive is a curvy, winding road, according to Paula Jo's testimony, there were no sharp curves on it, and she testified that before the accident she had manipulated about four gradual curves. This asphalt topped road was dry at the time of the fatal accident. Just before the accident, Paula Jo entered a long, gradual curve, and she testified that as she came around the curve to the right she attempted to turn the steering wheel of her car back to the left, but was unable to do so. The curve to the right she was in right before the accident was, according to her testimony, probably a little more than a quarter of a mile in length.
Before she had trouble with the steering wheel on this curve she hadn't experienced any difficulty with it, although she said "it squeaked" several times that night. The steering mechanism on the car was not checked after the one car collision.
Paula Jo's testimony about the steering wheel locking or freezing on her was, to say the least, vague and confusing. She said that after she started to turn as she entered that last curve she...
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L.R.M., In Interest of
...are also preponderance of the evidence cases: Garza v. Alviar, 395 S.W.2d 821, 822 (Tex.1965) (personal injury action); Simmons v. Jackson, 653 S.W.2d 935, 936 (Tex.App.--Fort Worth 1983, no writ) (wrongful death action). Other states have considered whether a different standard of appellat......