Southwestern Bell Tel. Co. v. Davis

• Decision Date: 03 May 1979
• Docket Number: No. 6062,6062
• Citation: 582 S.W.2d 191
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Ruth DAVIS et al., Appellees.
• Court: Texas Court of Appeals

Page 191

582 S.W.2d 191

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Ruth DAVIS et al., Appellees.

No. 6062.

Court of Civil Appeals of Texas, Waco.

May 3, 1979.

James E. Barden and Jerry R. Tucker, Sr., San Antonio, for appellant.

William O. Whitehurst, Jr., and Mack Kidd, Kidd & Whitehurst, Dicky Grigg, Spivey & Grigg, Joseph V. Crawford, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellees.

OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Southwestern Bell from judgment against it in favor of plaintiff Davis for $21,460.15, and plaintiff DeWitty for $96,717.92, in an automobile collision case.

On April 2, 1977 plaintiffs Davis and DeWitty were proceeding east on 12th Street in Austin, Texas. Mrs. Davis was driving her car, Mrs. DeWitty was a passenger. They were in a funeral procession travelling about 15 miles per hour. Esiquel Mindieta an employee of Southwestern Bell was proceeding north on Pleasant Valley Road towards its intersection with 12th Street. He ran into and collided with plaintiff's vehicle in the intersection, injuring both plaintiffs.

Plaintiffs filed this suit against Southwestern Bell alleging Mindieta in the course of his employment, was negligent in failing to keep proper lookout and in failing to timely apply his brakes. Defendant answered by general denial and counterclaim alleging plaintiff Davis was negligent in failing to keep proper lookout, failing to timely apply brakes, and in disregarding a red light.

Trial was to a jury which found:

1) Esiquel Mindieta was negligent in his lookout, and in the timely application of his brakes, which was a proximate cause of the occurrence.

2) Ruth Davis was not negligent: in her lookout; in timely application of her brakes; in observing traffic signals; or in the control of her speed.

3) Was conditionally submitted upon a finding of negligence on the part of both parties, inquiring of the comparative negligence of the parties, and was accordingly not answered.

4) Was the damage issue as to plaintiff DeWitty, and found her damages as follows:

A. $3,367.92: past medical care.

B. $5,850.00: past earnings loss.

C. $7,500.00: past pain and mental anguish.

D. $12,500.00: future medical care.

E. $50,000.00: future loss of earnings.

F. $10,000.00: future pain and mental anguish.

5) Was the damage issue as to plaintiff Davis, and found her damages as follows:

A. $2,120.15: past medical care.

B. $1,640.00: past earnings loss.

C. $4,000.00: past pain and mental anguish.

D. $500.00: future medical care.

E. $4,000.00: future loss of earnings.

F. $250.00: future pain and mental anguish.

6) Fixed $1,250.00 as damage to Mrs. Davis's car.

7) Fixed $200.00 for rental of a car by Mrs. Davis while her car was being repaired.

8) Fixed $681.10 as damage to Southwestern Bell's vehicle.

9) Found the entrustment of the van to Mindieta by Southwestern Bell was gross negligence.

10) Awarded exemplary damages of:

$7,500.00 to Mrs. DeWitty

$7,500.00 to Mrs. Davis.

The trial court rendered judgment on the verdict for plaintiff Davis for $21,460.15; and for plaintiff DeWitty for $96,717.92.

Appellant appeals on 16 points contending:

1) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 1, finding that Mindieta was negligent in failing to keep a proper lookout, and to timely apply his brakes, and such finding is against the great weight and preponderance of the evidence.

2) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 2, finding plaintiff Davis not negligent, and such finding is against the great weight and preponderance of the evidence.

3) The trial court erred in permitting expert witness Ruble to testify when the facts were before the jury, and fully available for assessment without testimony of an expert who was not present at the scene of the accident when it occurred.

4) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 4 finding plaintiff DeWitty's damages in the total sum of $96,716.42.

5) There is no evidence and/or insufficient evidence to support the jury's answer to Issue 5 finding plaintiff Davis's damages in the total sum of $22,460.15.

6) There is no evidence and/or insufficient evidence to support the jury's answers to Issues 9 and 10.

Contention 1 complains of the jury's finding that Southwestern Bell's driver Mindieta was negligent in failing to keep a proper lookout and to timely apply his brakes; contention 2 complains of the jury's finding plaintiff Davis was not negligent; and contention 3 complains of the trial court's permitting witness Ruble, an accident reconstructionist expert, to testify in the case.

There is evidence plaintiffs were travelling at approximately 15 miles per hour; that Mindieta was travelling approximately 25 miles per hour; that plaintiffs were in a funeral procession 10 or 11 cars back from the policeman; that all cars had their lights on; that plaintiffs were a half car length behind the car in front of them; that there were a number of cars behind them in the procession; that Mindieta hit plaintiffs in the intersection; that at the speed of both vehicles, the position of obstructions, the visibility line, the point at which the drivers of both vehicles could see the other driver, was a distance of approximately two and three-fourths second away from the point of impact; that Mindieta could have reacted in three-fourths of a second, and stopped in approximately three-fourths of a second; that he could have stopped the van in 40 feet; that northbound travellers on Pleasant Valley Road could see the intersection through which the funeral procession was proceeding from 350 feet away. This plus the fact that all cars in the funeral procession had their headlights on authorized the jury to infer that Mindieta would have to notice that a funeral procession was going through the intersection.

Mrs. Davis was travelling at fifteen miles per hour one-half car length behind the car ahead of her in the funeral procession. A policeman was leading the procession. There is evidence that at the time the light facing Mindieta turned green, an automobile was just clearing the intersection. Thus, the jury could reasonably infer that Mrs. Davis was partially in the intersection when the light facing her turned red. Moreover, there is a universal custom developed over the years for automobiles to stop to allow a funeral procession to cross an intersection. See: Sundene v. Koppenhoefer,343 Ill.App. 164, 98 N.E.2d 538.

The witness Ruble, an accident reconstructionist expert, testified extensively as to his qualifications; computed braking distances and times involved, and demonstrated to the jury with mathematical precision that if Mindieta had maintained a proper lookout and timely applied his brakes, the accident would not have happened. The testimony of experts are commonly permitted to testify to such matters as above if within their skill and expertise. Barker v. Dunham, Tex., 551 S.W.2d 41; Texas Law of Evidence, McCormick & Ray, Section 1400, pp. 233, 234 (1956); Lawson v. State of McDonald, Tex.Civ.App. (Waco) NRE, 524 S.W.2d 351; State Highway Dept. v. Hinson, Tex.Civ.App. (Corpus Christi) NRE, 517 S.W.2d 308; Pappas v. Estate of Laughlin, Tex.Civ.App. (Beaumont) NRE, 552 S.W.2d 525; McIlroy v. Wagley, Tex.Civ.App. (Corpus Christi) NRE, 437 S.W.2d 5; Pace v. Gutierrez, Tex.Civ.App. (Amarillo) NRE, 492 S.W.2d 356.

And defendant did not object to witness Ruble's testimony thereby waiving such point. Champion Mobile Homes v. Rasmussen, Tex.Civ.App. (Tyler) NRE, 553 S.W.2d 237; Battles v. Adams, Tex.Civ.App. (Austin) NRE, 415 S.W.2d 479.

Contentions 1, 2 and 3 are overruled.

Contentions 4 and 5 assert there is no evidence or insufficient evidence to support the jury's award to Mrs....