Texas Brine Corp. v. Lofton

• Decision Date: 11 April 1985
• Docket Number: No. C14-83-480-CV,C14-83-480-CV
• Citation: 698 S.W.2d 691
• Parties: TEXAS BRINE CORPORATION, et al, Appellants, v. Andrew K. LOFTON, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 691

698 S.W.2d 691

TEXAS BRINE CORPORATION, et al, Appellants, v. Andrew K. LOFTON, Appellee.

No. C14-83-480-CV.

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

April 11, 1985.

Rehearing Denied Oct. 17, 1985.

David V. Jones of Fulbright & Jaworski, Houston, for appellants.

Gene Hagood of Brown, Todd, Hagood & Davenport, Alvin, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

SEARS, Justice.

Appellant Morris Wayne Johnson, while in the course and scope of his employment with Appellant Texas Brine Corporation, was involved in a vehicular collision with Appellee. Appellee brought suit against Appellants for personal injuries and was awarded $113,500.00. This amount was reduced by 35%, the percentage of comparative negligence that the jury attributed to Appellee. The central issue is whether or not speed can be a proximate cause without foreseeability. We hold it cannot. The judgment is reversed and remanded.

On the evening of the accident, the weather conditions were foggy with some severe patches of fog. Johnson was traveling in the eastbound lane of F.M. 2917, which is a two-lane road with a posted speed limit of 55 miles per hour. Appellee was northbound on F.M. 2004, which dead-ends on F.M. 2917. It was Appellee's intention to turn left and enter the westbound lane of F.M. 2917.

Appellee testified that he has no memory of the events subsequent to stopping at the stop sign controlling entry onto F.M. 2917. His next clear recollection was waking up in the hospital. However, in a pre-trial deposition he swore that his last clear memory was getting into his pickup, and that he had no memory of the stop sign or of his entry onto F.M. 2917.

Johnson testified that he was driving his eighteen-wheeler eastbound at a speed of 45-50 miles per hour. Several hundred feet before reaching F.M. 2004 there is a right turn lane for eastbound traffic situated on the south side of F.M. 2917. Johnson first saw Appellee's vehicle to his right in this turn lane and facing west rather than east, i.e. facing the wrong direction. As Johnson approached, Appellee's vehicle darted in front of Johnson in a northerly direction and was sideways in Johnson's lane of traffic. Johnson applied his brakes and turned left to avoid the collision. The left front portion of Johnson's vehicle struck the middle of the left side of Appellee's vehicle and drove it off the north side of the road.

An accident reconstructionist testified that his investigation revealed that immediately prior to impact Johnson was traveling in an easterly direction at 41 miles per hour. Appellee was traveling in a northerly direction at 15-20 miles per hour. The impact occurred at the center line of F.M. 2917 approximately 300 feet west of the F.M. 2004 intersection. Appellee was, therefore, crossing Johnson's lane of traffic 300 feet west of the area designated for such a crossing. There is no explanation for Appellee's actions.

The case was submitted to the jury and it found:

(1) Johnson was driving at a greater rate of speed than a person using ordinary care would have driven, and this was a proximate cause of the collision;

(2) Johnson crossed the center line of the highway immediately prior to the collision but this was not a proximate cause of the collision; and

(3) Appellee was negligent in failing to keep a proper lookout and in failing to yield the right of way, and both were proximate causes of the collision.

Appellants allege in a single point of error that there was no evidence, or alternatively insufficient evidence, to support the jury finding of speed as a proximate cause.

Proximate cause is comprised of two elements: (1) cause in fact and (2) reasonable foreseeability. Farley v. M.M. Cattle Co., 529 S.W.2d 751 (Tex.1975). "Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred." Texas & Pacific Railway v. McCleery, 418 S.W.2d 494, 497 (Tex.1967). The foreseeability element was established in Clark v. Waggoner, 452 S.W.2d 437, 439-40 (Tex.1970) as:

proof that the actor as a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act, and the rule does not require that he anticipate just how injuries will grow out of that dangerous situation.... The test is not what the wrongdoer believed would occur; it is whether he ought reasonably to have foreseen that the event in question, or some similar event, would occur.

Appellants contend that neither element of proximate cause was established in this case. Appellee argued at trial that if Johnson had reduced his speed one mile per hour a few miles prior to the scene of the accident, the accident would not have occurred. The jury evidently believed Appellee's argument; we do not. It could as easily be argued that if Johnson increased his speed one mile per hour he would have passed the point of impact prior to the time Appellee darted across the road.

Appellee cites Biggers v. Continental Bus Systems, 157 Tex. 351, 303 S.W.2d 359 (1957), to support his proposition that speed was a proximate cause. The Biggers case is distinguishable. The defendant bus driver was driving on a heavily traveled public highway at an excessive rate of speed (60-65 miles per hour). He first observed the string of three automobiles involved in the collision when he was still eight-tenths of a mile away from them. He testified that he knew the second car in the string was traveling at a greater rate of speed than the first and third, thus presenting to the mind of a reasonable man the possibility that the second or third car might pull into its left-hand lane to try to pass the other cars. Biggers, 303 S.W.2d at 366. The Biggers Court noted that the defendant thus had ample time and distance in which to reduce his speed to a reasonable rate (40-45 miles per hour) before reaching a point where his speed would create a situation of imminent danger if one of the cars should enter his lane of traffic. The Court held that under these circumstances a person of ordinary intelligence should reasonably have anticipated the danger to others created by his excessive speed if any one of the approaching automobiles should enter his traffic lane for whatever reason. The Biggers Court found that the jury could reasonably have concluded that if the speed of the bus had been reduced to 40-45 miles per hour when the bus driver was first confronted with the inherent danger in the situation, the collision would never have occurred. Thus the Court upheld the jury finding that the bus was traveling at a rate of speed in excess of 55 miles per hour, that this speed was excessive and a probable cause of the collision.

We recognize that appellate courts are without authority to set aside jury verdicts upon conflicting facts, and particularly on questions of proximate cause in damage suits. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982 (1941). We further recognize that the facts must be undisputed, ample and clear, and the circumstances must be exceptional to justify such action. Id. However, the essential facts of this case are undisputed.

Appellee contends that the fog, wet road conditions, evening hour, the heavily loaded truck and the previous passing of other cars should have given Johnson the same degree of foreseeability imparted to the defendant in Biggers. We do not agree.

While there was no testimony that Johnson was traveling at an "excessive" speed, nor did the jury so find, we recognize that the presence of Appellee facing him on the wrong side of the road and the patches of fog could provide the basis for the jury finding "some" evidence that Johnson was traveling at an "excessive" rate of speed under those conditions. Further, this could provide "some" evidence that speed was a proximate cause. It would be unrealistic to say Johnson could not under any circumstances foresee that a car stopped on the wrong side of the road may, without warning, dart across his path, and his speed would make stopping, deceleration or turning to avoid a collision more difficult. We therefore overrule Appellants' "no evidence" point of error.

However, the inescapable conclusion is that Johnson could not have reasonably foreseen that the Appellee would cross the road in front of him at such a place and time so as to allow Johnson no opportunity to avoid the collision. Johnson was traveling at a speed 15 miles per hour below the posted speed limit. According to the accident reconstructionist, the two vehicles were only 150-180 feet apart when Johnson first saw the Appellee. At that moment Appellee's truck was already moving into Johnson's lane of traffic. Johnson's minimum reaction, perception and mechanical deficiency (or lag time) took 2.5 seconds, which at 41 miles per hour carried him 150 feet closer to Appellee; braking distance would have required another 107 feet at a minimum. Considering the fact that the Appellee was 300 feet from the nearest intersection and Johnson had never seen a vehicle parked along that side of that road during all his many travels, he could not have reasonably foreseen this particular danger, nor did he create it, nor could he have avoided it. Therefore, we find the evidence is factually insufficient to support a jury finding that Johnson's speed was a proximate cause of the collision. Further, that finding by the jury is so against the weight and preponderance of the evidence as to be manifestly wrong and unjust. We sustain Appellants' insufficiency point of error. Appellants' claim for recovery of costs of repair to its vehicle due to Appellee's negligence will necessarily have to be determined by a new trial.

The judgment of the trial court is reversed and remanded for a new trial.

JUNELL, Justice, dissenting.

I respectfully dissent. I believe the evidence is sufficient to support the jury finding that the speed of the Texas Brine...