Thoreson v. Thompson

• Decision Date: 17 July 1968
• Docket Number: No. B--673,B--673
• Citation: 431 S.W.2d 341
• Parties: Donnie THORESON, Petitioner, v. D. F. THOMPSON, Respondent.
• Court: Texas Supreme Court

Page 341

431 S.W.2d 341

Donnie THORESON, Petitioner, v. D. F. THOMPSON, Respondent.

No. B--673.

Supreme Court of Texas.

July 17, 1968.

Rehearing Denied Oct. 2, 1968.

Linn, Helms & Countiss, Richard Countiss, Spearman, for petitioner.

Lemon, Close & Atkinson, R. D. Lemon, Perryton, Ogden, Ogden & Board, Guymon, Okl., for respondent.

HAMILTON, Justice.

This is an action for damages for the negligent destruction by fire of a wheat crop. The landowner-petitioner, Thoreson sued Thompson, a professional in the custom-cutting business, alleging that the act of Thompson's employee Leslie, in driving defendant's two ton truck into the wheat stubble was negligence which proximately caused the fire and destroyed the wheat. The jury in response to special issues so found, and judgment was rendered for Thoreson for $7380.00. The court of civil appeals reversed this judgment and rendered judgment that plaintiff take nothing. 423 S.W.2d 175. The predicate for this holding was twofold: first, that there was no evidence that 'the fire was caused by any negligence traceable to appellant or his employees.' Second, that here was no evidence that driving the truck into the stubble was negligence. We disagree.

Since the court of civil appeals held that there was no evidence to support the jury's findings, a full statement of the evidence is proper. In reviewing this holding it is fundamental that the court only considers that evidence 'which, when viewed in its most favorable light, tends to support (the jury's) finding, and must disregard all evidence that would lead to a contrary conclusion.' Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.Sup.1964).

We shall first consider the evidence which it is contended is relevant to the question of negligence in driving the truck into the field.

The defendant had been in the wheat cutting and combining business since 1959 and for several years prior to 1965, the year of the accident, had contracted and cut the wheat of petitioner. The field involved herein contained 186 acres and was practically square. There was a road on one side of the field and a turn row on the other where the trucks parked to receive the wheat when the bin on the combine became full. The testimony indicates that the capacity of the bin on the combine was such that the bin would hold only that amount cut in one swath of the field and would not make a complete circuit from one side of the field to the other without the bin running over. At the time of the fire approximately one half of the field had been cut, and the truck driven by Leslie was in the field preparatory to unloading the combine which had become filled while still in the middle of the field.

Petitioner on the day before the fire had warned defendant to stay out of the field. Defendant himself testified:

'Q. And in stubble that high, there is a very real danger of fire, isn't there, when you drive a truck across it?

'A. I would say that's right.

'Q. And you had as a matter of fact, warned your men not to do this, hadn't you?

'A. Yes, sir.

'Q. And Mr. Thoreson had warned you, the night before this thing happened, to keep those men out of that stubble, hadn't he?

'A. We had thought it wasn't necessary to be out there--not to be out there unnecessarily, I will put it that way.

'Q. Well, he actually told you to keep your men out of that stubble, didn't he?

'A. I wouldn't swear that he particularly told me that. We did talk about the stubble, about the fire.

'Q. And you were concerned because you didn't want to have a fire?

'A. I did not.

'Q. And he was complaining, in particular about Mr. Leslie, was he not?

'A. Mr. Leslie drove down in there and started to follow the combine, and I stopped him and turned him around. It was unnecessary to following the combine through the field.

'Q. That was the day before it happened?

'A. That was the evening before.'

The testimony of plaintiff was of like tenor.

'Q. All right. What did he do with the boy?

'A. Well, he, in a round-about way, just told him to stay out of the field.

'Q. Well, what did you tell Mr. Thompson, exactly, about the trucks going into the field, if anything?

'A. That we was going to have to keep these trucks out of them fields or we was going to catch them on fire.'

It is clear then that defendant knew of the risk involved in driving a truck in the wheat field. He was warned of the danger and he acknowledged this warning by both his testimony and by his conduct, telling Leslie not to drive in the field. This evidence has probative value of the negligence itself and is not merely evidence of foreseeability of harm as part of the proximate cause determination. See Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 206 (1959). Since the risk was known and appreciated, the question remains, what was the conduct of an ordinary prudent person in relation to this knowledge? The answer to it depends on balancing the likelihood of injury, the seriousness of injury if it happens, and the interest which must be sacrificed to avoid the risk. See 2 Harper & James, The Law of Torts, § 16.9 at 929. Is there any evidence of probative value in the record which could substantiate each of these factors and thereby present the jury with evidence upon which it could determine the quality of the conduct? The evidence that the wheat was dry and being harvested is some evidence that if a fire occurred, total consumption of the crop would ensue. Testimony that roads were available at either end of the field, that the combines could be unloaded there without necessitating driving the truck into the field, and that the combine could traverse the field in one direction without filling up the bin is evidence of the degree of inconvenience or delay in unloading a partially filled combine at the turn row. The most difficult question is whether there is any evidence of the quantitative probability of the injury. It is clear, as was recognized by the court of civil appeals, that the fact an accident happens is no evidence that there was an unreasonable risk of such an occurrence; because almost an activity involves some risk of harm. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (1937); see Galveston, H. & S.A. Ry. v. Crier, 45 Tex.Civ.App. 434, 100 S.W. 1177 (1907); Harper & James, supra at 930. When common experience dictates that the risk of injury is high, no direct proof of the quantum of such risk is required. This rule is particularly applicable to cases involving the res ipsa loquitur doctrine. Wichita Falls Traction Co. v. Elliot, 125 Tex. 248, 81 S.W.2d 659 (1935).

However, where common knowledge will not suffice, plaintiff must establish the degree of risk by competent evidence. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.Sup.1968); Stanolind Oil & Gas Co. v. Lambert, 222 S.W.2d 125 (Tex.Civ.App.1949, no writ history). The evidence herein logically relevant to the risk of driving a truck into the field is circumstantial. In essence it consists of the fact that on the day preceding the accident defendant was warned of the risk, and that pursuant to that warning he instructed his employee to stay out of the field unnecessarily. We hold that these facts constitute some evidence that the risk of fire was enhanced by the presence of a truck in the wheat field. The inferences logically to be drawn from this evidence and the determination of the quality of defendant's conduct in relation thereto were for the jury subject to review as to factual sufficiency by the court of civil appeals. Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868 (1942). See also Annot., 125 A.L.R. 645 (1940); 29 Am.Jur.2d Evidence, § 357 (1967); 65A C.J.S. Negligence § 233 (1966); Chamberlayne, The Modern Law of Evidence § 2666 (1913).

We now consider the correctness of the holding of the court of civil appeals that there was no evidence of probative force that would support the jury's finding of proximate cause. The trial court in its charge defined proximate cause as 'a cause without which the event would not have occurred' and one that 'would have been reasonably anticipated * * * by a person of ordinary prudence. * * *' From the evidence of negligence detailed above, it is clear that the jury could reasonably have determined that defendant-combiner knew or should have foreseen the incineration of the wheat by driving the truck in the field. It is apparent then that the court of civil appeals determined that there was no evidence that this negligence was a cause in fact of the fire. Texas & Pacific Ry. Co. v. McCleery, 418 S.W.2d 494 (1967 Tex.Sup.) This ratio decidendi is further made manifest by respondent's contention in that court that the explosion of the truck caused the fire and that there was no evidence that the act of driving caused the explosion. The court of civil appeals stated that the manner in which the fire started was pure speculation. Petitioner concedes that there is no witness who could testify that he saw a spark leave the exhaust, the hot manifold resting against a stalk, or an electrical short which might have caused the fire, and hence concedes that there is no evidence of the exact machanical manner in which the fire started. Petitioner contends, however, that there was circumstantial evidence from which the jury might reasonably infer that the presence of the truck ignited the wheat and that this ignition and ensuing explosion and conflagration were the direct results therefrom. Leslie, the driver, did not testify at the trial and his whereabouts were not known by petitioner.

The evidence which substantiates the merit of petitioner's contention follows: On direct examination, as an adverse witness, respondent testified:

'Q. Now, this was Mr. R. J. Leslie, was it not?

'A. Yes, sir.

'Q. Who is the man whose truck actually caught the field on fire?

'A. Yes, sir. That's right.

'Q. And the very next day, he went into this field and his truck started this fire, didn't it?

'A. ...