Sumners Road Boring, Inc. v. Thompson, 113

• Decision Date: 29 July 1965
• Docket Number: No. 113,113
• Citation: 393 S.W.2d 690
• Parties: SUMNERS ROAD BORING, INC., Appellant, v. J. O. THOMPSON, Appellee.
• Court: Texas Court of Appeals

Page 690

393 S.W.2d 690

SUMNERS ROAD BORING, INC., Appellant, v. J. O. THOMPSON, Appellee.

No. 113.

Court of Civil Appeals of Texas, Corpus Christi.

July 29, 1965.

Rehearing Denied Sept. 16, 1965.

Bell, Gwin & Furse, Lawrence P. Gwin, Bay City, for appellant.

W. Jack Salyer, Bay City, Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, for appellee.

GREEN, Chief Justice.

Appellee J. O. Thompson, plaintiff below, following a jury verdict recovered judgment for damages in the sum of $53,062.00 against appellant Sumners Road Boring, Inc., for personal injuries received in a rear-end automobile collision. From an order overruling appellant's amended motion for a new trial, it has perfected its appeal to this court.

In answer to the only special issues submitted to the jury concerning responsibility for the accident, the jury found (1) that at the time of the occurrence made the basis of the suit, Mahler, appellant's employee, failed to exercise such control of the truck he was operating as would have been maintained by a reasonable and prudent person under the same or similar circumstances, (2) which failure was a proximate cause of the said occurrence, and (3) that the accident was not an unavoidable accident.

All other special issues related to plaintiff's damages. The court's judgment was based on the above answers of the jury, together with their responses to the damage issues.

Defendant timely in writing leveled the following objections, which were overruled by the court, to Special Issue No. 1, the 'proper control' issue:

'(a) No evidence; (b) insufficient evidence; (c) against the overwhelming weight and preponderance of the evidence; (d) No pleadings; (e) That the submission of the issue of failure to exercise control is a single issue constitutes a general charge.'

Appellant's first point of error reads:

'It was error for the Court to submit the primary negligence issues in a single issue of proper control over Appellant's objection that the same constituted a general charge.'

Appellee's counterpoint to the above is as follows:

'The Trial Court properly entered a judgment based upon the findings of the jury in response to the 'proper control' issues because they were not too general or global, because there were no proper objections thereto, and because the undisputed evidence in the case established Appellant's responsibility.'

We shall first consider the last part of appellee's crosspoint. As we view the record, the evidence, when considered most favorably to appellant, shows that Mahler, appellant's driver, was guilty of negligence as a matter of law in failing to properly apply his brakes, and that such negligence was a proximate cause of the accident. Regardless of whether the trial court erred in submitting the proper control issue, since there was no evidence of any contributory negligence by appellee, appellant, the admitted employer of Mahler acting at the time within the scope of his employment, was under the testimony responsible for the accident.

At the time of the collision, which occurred about 10:30 a. m. on a clear, dry day January 8, 196o, appellee was sitting in the driver's seat of his car, stopped at a street intersection in Bay City, Texas, waiting for the red traffic light facing him to turn to green so that he could proceed. Mahler testified that as he was approaching from behind appellee's car, driving about 35 miles per hour, he was the car while still approximately fifty yards away, and realized it was stopped for a red light. On direct examination, as a witness for appellant, he stated:

'Well, I proceeded into town. I wasn't in any particular hurry, because I would just have to get back and go back to work, and I came up and this car happened to be setting at a red light, at a dead halt, and I came behind him slowing down and all of a sudden my foot was on the brake, and slowing down, and all of a sudden there was nothing and I rolled up and bumped him. I got out and I told him I would like to go over to the filling station so we wouldn't block traffic, and we drove over to the filling station and parked. He in front and I parked up against the wall and then someone--'

On cross examination, he testified:

'Q. Are you new saying that your brakes went out, is that what you are saying when you say I had nothing--

A. That is not at all what I told you.

Q. Are you now saying hat your brakes went out?

A. No I am not saying my brakes went out. They failed me, in other words, you can have many different ways your brakes failing. I had my foot on the brake now, as far as saying anything that may foot slipped off the brakes, or slipped to the side, and missed, any knowledge I had my foot was on the brake and pressing on it, and it didn't-wasn't going to stop. It was at a rolling speed, it wasn't going to stop before I was going to bump him.

Q. So you swerved when you saw you weren't going to stop?

A. I didn't have any time to swerve. I jusy cut the steering wheel and barely moved over.

Q. And your foot, while your foot went to the floor, it may have gone to the floor, because it came off the brake?

A. Something like that, could've happened.

Q. Right and probably did.

A. I am not saying it probably did, it could have.

Q. But any rate after the accident was over, you had brakes?

A. I had-they were checked, and they were just barely brakes.

Q. But you had brakes that would stop and did stop when you pulled up into the service station?

A. Yes,' * * * 'Q. In all probability, your foot did slip off the brakes?

A. It might have.'

Mahler stated that he had had no trouble with the brakes of the pick-up in driving to town previous to the accident, or in driving and stopping if after the collision. He knew of nothing being wrong with the brakes. Appellant's witness Joe Sumner, an owner of appellant company, and Mahler's boss, was a welder and machinist, and frequently did repair work on the company cars. He testified that he checked the brakes on the pick-up after the accident and could not find anything wrong with them. A couple of spoons of hydraulic fluid was all that was required to fill the brake cylinder. A peace officer, called to the secne of the accident, who did not qualify as a mechanic, used by appellant as a witness, was permitted without objection to testify that when he checked the brakes,

'The brakes were classified as defective brakes, by that I mean anytime you don't-when you might hit a brake, and it does't catch, like it first should why that is my theory that is a defective brake, you pump them up and it'll take a good long while, by that time somethings already occurred.'

On cross-examination, he testified to the effect that Mahler should have been able to stop the truck prior to striking the car if after discovering the stopped car he kept pumping the brake with his foot.

Thus all of the testimony concerning the brakes disclosed that they were working before and after the accident, and that no repairs were necessary. There can be no inference drawn that they were defective other than that they may have required 'pumping'. Mahler was unwilling to state that any condition of his brakes, as distinguished from his foot slipping off, caused the occurrence. There was no testimony, above the grade of a scintilla, that any condition of the brake caused or contributed to cause the accident. Mahler's testimony, giving it its most extended inferential value, does not constitute more than an equal inference that his foot slipped off the brake. Dallas Railway & Terminal Co. v. Jarvis, 153 Tex. 384, 270 S.W.2d 205.

In Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, a rear end collision suit, the appellate court, concluding that defendant was guilty of negligence as a matter of law, reversed the trial court's judgment for defendant on a jury verdict, and rendered for plaintiff, and said:

'It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.'

This court has recently had occasion to write rather extensively in a rear end collision case in Meinen v. Mercer, Tex.Civ.App., 390 S.W.2d 36, writ ref. n. r. e. The judgment of the trial court for the defendant was reversed, and judgment was rendered for the plaintiff and damages assessed by the jury. Many authorities controlling the issues here involved are cited and discussed in Justice Sharpe's opinion. Without quotation or further discussion of authorities, we refer to what this court said in Meinen v. Mercer, and to Justice Norvell's opinion (Tex.Civ.App.) in Hoey v. Solt, supra, and hold that there are no extenuating circumstances or conditions shown to excuse Mahler's propelling his truck into the rear end of appellee's car, properly stopped in response to a traffic signal, and that Mahler was suilty of negligence as a matter of law in failing to make proper application of his brakes and that such negligence was a proximate cause of the collision.

Otherwise, and if the evidence were sufficient to require a jury issue of negligence and proximate cause of Mahler on the occasion in question, we are of the opinion that the trial court erred in submitting the case to the jury on the liability issue of proper control over appellant's objection, and would reverse and remanded the cause. Kainer v. Walker, Tex.Sup.Ct., 377 S.W.2d 613, and Barclay v. C. C. Pitts Sand and Gravel Co., Tex.Sup.Ct. 387 S.W.2d 644. In view of the statement of the Supreme Court on rehearing in Kainer v. Walker, the objection to the special issue made by appellant in the trial court that the submission of the issue of failure of control * * * constitutes a general charge was sufficient to apprise the court of the nature of appellant's objection, and the court...