Southwestern Bell Tel. Co. v. Sims, No. 17728

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: PEDEN; Chief Justice COLEMAN, C.J., and SMITH
• Citation: 615 S.W.2d 858
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY et al, Appellants, v. David SIMS et al, Appellee. (1st Dist.)
• Docket Number: No. 17728
• Decision Date: 12 March 1981

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615 S.W.2d 858 SOUTHWESTERN BELL TELEPHONE COMPANY et al, Appellants,
v.
David SIMS et al, Appellee. No. 17728. Court of Civil Appeals of Texas, Houston (1st Dist.). March 12, 1981.

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Dick Billeaud, Todd Lonergan, Houston, for appellants.

Foster, Pope & Orsak, Michael E. Orsak, Sugarland, for appellee.

PEDEN, Justice.

Southwestern Bell Telephone Company, and the driver of its truck, J. C. Gonzales, appeal from a judgment rendered on jury findings awarding $65,582.70 to plaintiffs David Sims and Roy Sims in a suit arising out of a non-collisional accident at an intersection in Richmond, Fort Bend County.

The plaintiffs alleged that a Bell Co. truck driven by Gonzales negligently ran a stop sign and pulled out in front of a dump truck owned by Roy Sims and driven by his brother, David Sims, causing David to swerve and overturn to avoid a collision; that the accident resulted in damage to the truck, lost profits to the hauling business of Roy Sims while the truck was being repaired, and personal injuries to David Sims. The appellants contend that the trial court erred in admitting and excluding evidence, in refusing to grant a continuance, and in refusing to excuse one juror from the panel. The appellants also urge that the amounts of the jury's awards to the plaintiffs were against the great weight of the evidence and that the court erred in refusing to hold that David Sims was negligent as a matter of law and in refusing to enter judgment non obstante veredicto on that basis. We affirm.

The appellants' first three points of error are that the trial court erred 1) in excluding the affirmative answer of David Sims when he was asked if he knew that the intersection where the accident occurred was a dangerous one, 2) in ordering such answer stricken and in instructing the jury to disregard it, and 3) in refusing to allow the eliciting of testimony from David Sims as to what he had heard about previous accidents at the intersection in question.

The appellants alleged that David Sims was negligent in that he failed to keep a proper lookout for other vehicles in the road, drove his vehicle at an excessive and dangerous speed under the circumstances, failed to apply his brakes properly, failed to keep his vehicle under proper control, and failed to sound his horn or give any notice of his approach.

In response to issues inquiring as to the conduct of David Sims, the jury did not find that on the occasion in question a) he "approached

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the intersection of Golf View Drive and Thompson at a greater rate of speed than a person using ordinary care would have approached such an intersection," or b) he failed to keep a proper lookout. The jury also did not find that David Sims failed to properly apply his brakes to avoid the accident.

David Sims testified that he was very familiar with the intersection. He was traveling within the speed limit as he approached it in his brother's dump truck on a clear day, and he was about 300 yards from the intersection when he first saw the telephone company truck approaching from his left. He looked to his right, then again to his left; he saw the company truck, still moving toward the stop sign, then he looked to his right again. He did not slow down. When he next saw the Bell truck it was in front of him. He applied his brakes and turned hard to his right, and his truck turned over. The police officer who investigated the accident testified that David Sims laid down 161 feet of skid marks.

The appellants complain about the trial judge's having instructed the jury to disregard the answer of David Sims that he knew the intersection was a dangerous one. They contend that he was negligent in admittedly approaching it at a rate only a little below the speed limit without sooner applying his brakes and without keeping a better lookout.

We do not agree. No relationship was shown, by bill of exception or otherwise, between any danger in the intersection known to David Sims and the danger he encountered; i. e., the failure of a vehicle on the cross-street to stop for the stop sign facing it. Had it been shown that David Sims knew the intersection was dangerous because that stop sign was obscured, for example, it would have been error to exclude evidence of his knowledge of that fact. On the other hand, if he knew that the intersection was dangerous because the roadway was slippery when wet, evidence of that knowledge would not be relevant when, as here, the accident happened on dry roads.

The first three points of error are overruled.

The appellants next complain that the trial court erred in failing to direct a verdict in their favor and in overruling their motion for judgment non obstante veredicto because David Sims was negligent as a matter of law.

The trial court had a duty to render judgment in accordance with the jury's findings unless the answers to the special issues had no support in the evidence; judgment non obstante veredicto is proper only where a directed verdict would have been proper. Rule 301, Tex.R.Civ.Proc. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

The court may not refuse to submit an issue or disregard the jury's answer to it merely because the evidence is factually insufficient to support the answer. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). A complaint that the trial court erred in failing to grant a motion for directed verdict or judgment non obstante veredicto raises only "no evidence" points for purposes of appeal. See Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970).

In reviewing no evidence points we consider only evidence tending to prove the non-movant's case. In our case defendant Gonzales testified that on the afternoon of the accident he followed some cement workers in a green station wagon to Thompson Road and saw them turn into the Smoke House. On that afternoon witness Elijah White was taking three cement workers in his green station wagon from a concrete job on Golf View, off Thompson Road, to the Smoke House for lunch. While White was en route to the Smoke House, a Bell telephone truck "pulled out on him" and ran a stop sign at the intersection of Dowling street and Golf View. He and his workers continued to watch the Bell truck as it pulled out onto Thompson Highway without stopping at the stop sign at Golf View and Thompson; they saw a dump truck approaching at around 40 miles per hour. The

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Bell truck ran out into the path of the dump truck, and the dump truck hit its brakes, went into a skid, turned over, and went into a slide. The Bell truck stopped out in the street long enough for its occupants to see the other truck turn over, then went on its way. If the dump truck had not turned sharply, it would have "run dead over that telephone truck."

The jury was entitled to conclude from Mr. White's testimony that Gonzales was negligent and that David Sims was not. We overrule points four and five.

The appellants say in another point that the trial court erred in admitting, over objection, opinion testimony of Travis Clay and Bartow Watson concerning the potential net earnings of Roy Sims' business, because a proper foundation had not been laid. As a general rule, the question of whether a person is qualified to give opinion testimony in a given area is a matter within the judicial discretion of the trial court and will be overturned only for abuse. Standard Motor Co. v. Blood, 380 S.W.2d 651 (Tex.Civ.App.1964, writ dism'd); Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App.1960, writ ref'd n.r.e.); Bolstad v. Egleson, 326 S.W.2d 506 (Tex.Civ.App.1959, writ ref'd n.r.e.). Once a person is qualified as an expert he may give his opinion on any matter within the realm of his expertise, Carr v. Radkey, 393 S.W.2d 806 (Tex.1965), so long as the facts upon which his opinion is based either are within his personal knowledge or otherwise are properly in evidence, Roth v. Law, 579 S.W.2d 949 (Tex.Civ.App.1970, writ ref'd n.r.e.); Jefferson Chemical Co., Inc. v. Forney Engineering Co., 466 S.W.2d 361 (Tex.Civ.App.1971, writ dism'd).

Travis Clay testified that he is the owner of Clay's Dirt Pit, which is open five or five-and-a-half days each week, that he has been in the hauling business for more than twenty years, that he is familiar with the hauling capacity of 1975...