Smith v. Central Freight Lines, Inc., C14-88-162-CV

• Decision Date: 13 July 1989
• Docket Number: No. C14-88-162-CV,C14-88-162-CV
• Citation: 774 S.W.2d 411
• Parties: Lois SMITH and Alfred Smith, Appellants, v. CENTRAL FREIGHT LINES, INC. and Robert James Kersey, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 411

774 S.W.2d 411

Lois SMITH and Alfred Smith, Appellants, v. CENTRAL FREIGHT LINES, INC. and Robert James Kersey, Appellees.

No. C14-88-162-CV.

Court of Appeals of Texas Houston (14th Dist.).

July 13, 1989.

Rehearing Denied Aug. 3, 1989.

Mark A. McLean, Houston, for appellants.

E. Thomas Bishop, Mark M. Donheiser, Sandra N. Tucker, Dallas, Bill Payne, Bryan, for appellees.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an appeal from a personal injury suit arising out of a rear end collision. Appellant Lois Smith was attempting to turn left from Highway 6 into her driveway when she was hit from the rear by a truck driven by appellee Robert James Kersey while in the course and scope of his employment for appellee Central Freight Lines, Inc. The accident occurred on a four-lane highway between Navasota and College Station. Mrs. Smith and her husband, who was not in the vehicle, sued appellees for negligence and gross negligence, and the case was tried to a jury. Although the jury found that Mrs. Smith had suffered damages in the amount of $56,750, the jury also found no negligence on the part of either Mr. Kersey or Mrs. Smith. The trial court therefore entered a take nothing judgment against the Smiths. We affirm the trial court's judgment.

The Smiths appeal the judgment with five points of error. In point of error one, they argue that the trial court erred in not granting their motion for directed verdict on negligence and proximate cause as Kersey and Central Freight were negligent per se. The Smiths assert that they plead and proved a violation of TEX.REV.CIV.STAT.ANN. art. 6701d, § 61(a) (Vernon 1977), which reads as follows:

Sec. 61(a). The driver of a motor vehicle shall, when following another vehicle, maintain an assured clear distance between the two vehicles, exercising due regard for the speed of such vehicles, traffic upon and conditions of the street or highway, so that such motor vehicle can be safely brought to a stop without colliding with the preceding vehicle, or veering into other vehicles, objects or persons on or near the street or highway.

The occurrence of an accident or a collision is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199 (Tex.Comm'n App.1937, opinion adopted) (rear-end collision case). More specifically, the mere occurrence of a rear-end collision will not present evidence of negligence as a matter of law. The plaintiff must prove specific acts of negligence on the part of the following driver and must also prove proximate cause. Vandyke v. Austin Indep. School Dist., 547 S.W.2d 354, 357 (Tex.Civ.App.--Austin 1977, no writ) (see for discussion of rear-end collision cases since Rankin ). Whether the plaintiff succeeds in proving negligence and proximate cause by a preponderance of the evidence is then within the jury's province to determine. Klein v. Brown-Griffin Texaco Distributors, Inc., 562 S.W.2d 910, 911 (Tex.Civ.App.--Amarillo 1978, writ ref'd n.r.e.).

The Smiths claim they proved Kersey was following too closely; however, the evidence concerning the accident was conflicting and the jury found that Kersey was not negligent. Thus, the Smiths' first point of error is essentially an evidentiary challenge and will be reviewed in tandem with points of error three through five. Those points contest the legal and factual sufficiency of the evidence to support the jury's answer to Special Issue No. 1, which asked whether the negligence of either Kersey or Mrs. Smith proximately caused the accident.

As the Smiths are attacking the legal sufficiency of an adverse finding to an issue on which they had the burden of proof, they must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.--Houston [1st Dist.] 1987, no writ). In reviewing such an argument, this court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. If there is no evidence to support the finding, then we must examine the entire record to determine if the contrary proposition is established as a matter of law. Holley v. Watts 629 S.W.2d 694, 696 (Tex.1982). Regarding the Smith's factual sufficiency challenge, this court must examine all of the evidence and should set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

With these standards in mind, we will review the evidence. On the day of the accident, Robert Kersey was hauling a trailer from Houston to Bryan. At the time of trial, he had been driving for Central Freight Lines for over a decade, and he had made the trip between Navasota and College Station approximately seventy-five times. Kersey testified that the accident occurred at dusk between 7:00 and 7:15 p.m. He was going up an incline in the right lane, traveling about fifty-five miles per hour and following a car traveling about fifty miles per hour. Central Freight requires its trucks to maintain a distance of five hundred feet between vehicles, so when it appeared that he was overtaking the car, Kersey opted to change lanes. He looked forward, checked his rearview mirror, checked the lane beside him, looked forward again and "didn't see a vehicle in the way up there." Had he felt the lane change was in any way hazardous, he would have stayed in the right lane and slowed down.

Kersey further testified that either before or as he changed lanes, he saw Mrs. Smith's pickup off in the distance with no lights of any kind. He had not traveled very far when he saw her left turn signal light come on, but he never saw any brake lights. He stated that Mrs. Smith slowed to thirty miles per hour and that the change was sudden, not gradual. As there were cars in both the right lane and the oncoming lane preventing a move, Kersey applied his brakes and tried to maintain control of the truck. Asked by Mrs. Smith's counsel whether he ever traveled at a speed of sixty-five to pass a vehicle, Kersey responded that he could not because his truck is equipped with a governor that controls the maximum speed at sixty miles per hour.

Mrs. Smith's driveway is located near the crest of a gradual incline. She testified that she was checking on a heifer in a field on the opposite side of the highway from her house. She remembered locking the gate and thinking that she had better hurry to get home before dark; however, she remembered nothing about the accident. Mrs. Smith further testified that when turning into her driveway, her habit is to use her left turn signal and to tap on the brakes (or "brake, turn loose, brake, turn loose") to alert people behind her that she is slowing.

There were two vehicles in the right lane when the accident occurred. Theresa Murphy Baggerly was driving a car with her father, Martin Murphy, as a passenger. Lonnie Crisp and his passenger Marie Weichert were driving a pickup and were towing a Volkswagen bus. All four people had been employed by a company to transport cars to and from Houston. Mrs. Baggerly testified by deposition that she first noticed Kersey's truck when it was about ten feet behind her in the left lane. She was going about...