Southwest Forest Industries, Inc. v. Bauman

• Decision Date: 31 August 1983
• Docket Number: No. 08-82-00196-CV,08-82-00196-CV
• Citation: Southwest Forest Industries, Inc. v. Bauman, 659 S.W.2d 702 (Tex. App. 1983)
• Parties: SOUTHWEST FOREST INDUSTRIES, INC., Appellant, v. Lorene BAUMAN, et al., Appellees.
• Court: Texas Court of Appeals

Page 702

659 S.W.2d 702

SOUTHWEST FOREST INDUSTRIES, INC., Appellant, v.Lorene BAUMAN, et al., Appellees.

No. 08-82-00196-CV.

Court of Appeals of Texas El Paso.

Aug. 31, 1983.

Rehearing Denied Oct. 5, 1983.

Stephen B. Tatem, Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellant.

Massie Tillman, Lexa Auld, Law Offices of Massie Tillman, Fort Worth, for appellees.

Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

In this jury tried case, the question is whether there is legally sufficient evidence to support the proximate cause finding.Based on the jury verdict, judgment was entered for the plaintiffs in the sum of $146,875.00.We affirm.

This is a wrongful death action brought by the surviving widow and father of Jesse Bauman who was killed when the truck he was driving left the highway and crashed into a rock embankment.Some twenty or thirty minutes prior to this crash, defendant's driver had jack-knifed his tractor trailer at the bottom of a hill where it blocked a portion of the highway.Plaintiffs' cause of action is predicated on the failure of defendant's driver to put out any warning devices.The scene of the occurrence was a portion of Highway 285 in New Mexico, being a steep slope or hill following a slight curve.It was snowing and the road was icy.There were other vehicles at the scene.The defendant's vehicle was a tractor pulling two empty twenty-seven foot flat-bed "pups."It spun around on the snow and ice-covered highway and came to a stop partly in and along the northbound driving lanes of the highway.After the defendant's vehicle had come to rest and before the Bauman vehicle struck the embankment, a northbound tractor pulling a covered trailer, driven by Mr. Brill, first stopped south of the defendant's vehicle, then passed it and started up the hill in the northbound lane.About this time or shortly thereafter, a southbound station wagon driven by Mr. Lucke slid off the road and stopped at a point identified as north of milepost 393.The defendant's jack-knifed vehicle was some 429 feet south of milepost 393.At a time estimated from twenty to thirty minutes after the defendant's vehicle came to rest, the Bauman vehicle came upon the scene and crashed into the rock embankment on the west side of the road some 400 feet north of mile post 393.No one saw the actual crash.At the time, Mr. Lucke had left his car and was walking toward the defendant's truck.He and his wife heard the sound of the truck striking the embankment.

Defendant pled that the accident of its truck was unavoidable because of the deteriorating weather conditions.It also alleged that the conduct of Mr. Brill and/or Mr. Lucke were new and independent causes to any condition that Mr. Bauman may have faced as he approached the scene.Liability is based upon Issue No. One: "Whose negligence, if any, do you find from a preponderance of the evidence was proximate cause of the occurrence in question?"From a multiple choice of plaintiff, defendant, both or neither, the jury selected defendant.That finding and the damage issues complete the charge on which the judgment is based.Defendant as Appellant presents three points of error: that the court erred in entering judgment, in not granting its motion for judgment notwithstanding the verdict and in not granting its motion for directed verdict; each because there was no evidence that the deceased's death was causally connected to any negligent conduct of its driver Mario Raygoza.All points of error are presented and argued together since they each present the question of proximate cause.

In reviewing a "no evidence" point, we look only to that evidence...