Texas Pacific Coal & Oil Co. v. Wells

• Decision Date: 15 May 1941
• Docket Number: No. 2322.,2322.
• Citation: 151 S.W.2d 927
• Parties: TEXAS PACIFIC COAL & OIL CO. et al. v. WELLS et al.
• Court: Texas Court of Appeals

151 S.W.2d 927

TEXAS PACIFIC COAL & OIL CO. et al. v. WELLS et al.

No. 2322.

Court of Civil Appeals of Texas. Waco.

May 15, 1941.

Rehearing Denied June 12, 1941.

Appeal from District Court, Nineteenth District, McLennan County; R. B. Stanford, Judge.

Suit by Mrs. Charles S. Wells and others against Texas Pacific Coal & Oil Company and others for death of Charles S. Wells. Judgment for plaintiffs and defendants appeal.

Judgment reversed and judgment rendered for defendants.

Naman, Howell & Boswell, of Waco, for appellants.

Turner, Rodgers & Winn and Will R. Wilson, Jr., all of Dallas, and Bryan & Maxwell and Stansell Bryan, all of Waco, for appellees.

HALE, Justice.

Appellees instituted this suit against Texas Pacific Coal & Oil Company, J. H. Jackson and O. L. Fletcher for the recovery of damages on account of injuries resulting in the death of Charles S. Wells. The deceased was operating a 1937 Ford V-8 coupe going south over the Waco-Dallas highway at about 10:30 o'clock on the morning of February 9, 1937, and appellant Jackson, hereafter referred to as the truck driver, was operating a 1936 Chevrolet oil truck going north over said highway when the two vehicles came into violent collision near the east margin of the concrete portion of said highway, causing the instant death of the deceased, the destruction of his Ford automobile, serious injuries to the truck driver and substantial damage to the truck.

Upon the conclusion of the testimony, appellants seasonably requested the court to instruct the jury to return a verdict in their favor and, such motion having been refused, they interposed timely objections to the submission of each of the issues upon which their liability might be predicated on the ground that there was no evidence raising such issues. The jury found actionable negligence on the part of the truck driver in that he turned the truck on to his left (west) side of the highway just before the collision and failed to continue on across, but turned back on to and across the right (east) side of the highway. The jury also found against appellants on the issues of contributory negligence and discovered peril, which were duly raised by the pleadings. The court overruled the motion of appellants for judgment non obstante veredicto and rendered judgment against them, from which they have appealed, and by appropriate assignments they insist that the judgment should be reversed and here rendered in their favor because there was no evidence to support the findings of the jury against them and because the undisputed evidence established contributory negligence as a matter of law.

The essential facts upon which a claim of negligence is based may not be presumed, but each component element necessary to support a recovery must be established by competent, admissible evidence. In passing upon the competency of the evidence to raise such an issue, it is the duty of the court to view the same and all reasonable inferences that may be drawn therefrom in the most favorable light for the claimant, and if there be any such evidence, either direct or circumstantial, which when thus viewed may serve as the basis for a legal inference of the fact sought to be established, then such issue, if otherwise material, should be submitted to the jury. On the other hand, if there be no evidence of probative force tending to establish the fact or facts upon which the charge of negligence is grounded, then the court should instruct the verdict. And further, in the language of the Supreme Court in the case of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, 1063: "It is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being `any evidence.'"

The primary negligence, if any, of the truck driver in this case is grounded upon the charge that he turned the truck on to his left (west) side of the highway just before the collision. There is no direct evidence from any witness that he did so, all of the same being to the contrary. But we must determine whether there was any evidence of probative force showing the existence of circumstances which, when viewed in the most favorable light for appellees, would justify the jury in reasonably inferring therefrom that the truck driver did turn said truck on to his left side of the highway just before the collision.

Appellees introduced in evidence a large map, drawn to scale by a licensed engineer, demonstrating the surface area and elevation of the section of the highway where the collision occurred. On the west side of the highway immediately opposite the point of collision was the Hilltop Filling Station. There was a slight curve in the highway at this point so that one approaching the scene from the north would begin a gentle turn to his left about 500 feet before reaching the filling station and at about the same distance south of the station this gradual curve disappeared into another straight-a-way. The elevation was such that one approaching the scene from the north would travel somewhat upgrade, gaining one foot in the last 300 feet traveled, and continuing south from the point of collision the elevation descends for a distance of 800 feet at an average grade of 1.7%, such grade being .8% in the first 100 feet, 1.5% in the second 100 feet, 2% in the third 100 feet, and so on to the low point, which at 800 feet away is 13.9 feet lower than the crest. There was a well defined black stripe extending north and south in the center of the highway. The width of the concrete portion of the highway was 20 feet, with 10 feet of smooth shoulder on each side of the concrete and a width of 100 feet for the entire right-of-way.

Appellees also introduced in evidence 18 photographs taken at the site of the collision at different times. Five of these pictures were taken by A. H. Caperton within five minutes after the crash. They show the Ford completely demolished and entirely off of the concrete portion of the highway to the east thereof, and the truck with its left rear wheel still on the pavement, the front of the truck being east of the concrete, with the oil tank careened on its left side, the right rear wheel of the truck being suspended in the air, its axle forming an angle of about forty-five degrees with the surface of the highway. Caperton testified that the right rear wheel of the truck was still spinning when he took the first of these pictures. It is not contended that any of the Caperton pictures disclose any skid-marks on the highway. Additional pictures were taken by one Urbanowsky at the request of appellant Fletcher within two or three hours after the collision, and others were taken by Wayne Farmer at the request of appellee Taggart four or five days later. There was no direct testimony as to whether the physical facts reflected by any of these additional pictures were the same as obtained immediately after the collision, and counsel for appellants seasonably objected to their introduction in evidence on that ground. Appellees contend that some of these pictures indicate skid-marks on the concrete portion of the highway which were made by each of the vehicles involved in the wreck. The marks so made by the Ford begin on the west side of the center line and extend in a curve on to the east side of the concrete portion of the highway. Appellees assert that these pictures also demonstrate certain curving marks made by the truck, but it appears, and we believe it is conceded by appellees, that all visible marks which could have been made by the truck were curving toward the east and all of such marks were entirely east of the center line of the highway.

Ed Mashek testified that he was driving north on the highway at the time of the accident; that he had passed over the bridge and was going up the hill when "it seemed to me like the truck was going to pull into the filling station, the best I could see of it, and he started in an angle to go to the filling station, and at the same time the V-8—the truck ran on to the right hand side of the road almost off the pavement— the truck was going to go across—it seemed to me like he was going to go into the filling station and then turned to the right and that is when the collision occurred, right on the right hand side of the road." The witness placed on the scaled map in evidence the point where he thought he saw the truck make a move as though it were going to turn into the filling station, which point was approximately 200 feet...