Trailways, Inc. v. Clark

• Decision Date: 22 June 1990
• Docket Number: No. 13-87-227-CV,13-87-227-CV
• Parties: TRAILWAYS, INC. and Transportes Del Norte, Appellants, v. Anita CLARK, Individually and as Personal Representative of the Estate of Eulalia P. Mayorga, et al., Appellees.
• Court: Texas Court of Appeals

Page 479

794 S.W.2d 479

TRAILWAYS, INC. and Transportes Del Norte, Appellants, v. Anita CLARK, Individually and as Personal Representative of

the Estate of Eulalia P. Mayorga, et al., Appellees.

No. 13-87-227-CV.

Court of Appeals of Texas,

Corpus Christi.

June 22, 1990.

Rehearing Overruled Aug. 31, 1990.

Jeffrey W. Jones, Johnson & Davis, Harlingen, Reynaldo G. Garza, Garza & Garza, Brownsville, Thomas Black, San Antonio, Thomas Hight, Hight & Hight, Dallas, for appellants.

Ann Skaro, Frank Delaney, Corpus Christi, Frank M. Skaggs, Jamail & Kolius, Houston, for appellees.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

KENNEDY, Justice.

This is a wrongful death case on remand from the Supreme Court of Texas 774 S.W.2d 644. The decedents, Eulalia Mayorga and Emma Trejo, while traveling on a bus in Mexico, were killed when the bus left the highway and overturned. Their survivors and the representatives of their estates brought the present suit to recover wrongful death and survival damages from Transportes Del Norte (TDN), the Mexican bus line on which the decedents were traveling, as well as from Trailways, Inc. (Trailways), a bus line operating out of Texas which plaintiffs also sought to hold responsible for the deaths. The jury found TDN negligent and assessed the amount of damages resulting to each plaintiff from the wrongful deaths. The trial court awarded judgment for plaintiffs against both TDN and Trailways, based on its own findings that Trailways was also liable for the damages resulting from TDN's negligence. In the present appeal, TDN brings six points of error, Trailways brings ten, and appellees bring four cross-points.

TDN's first point of error was originally sustained by this Court and the case remanded thereon. However, the Texas Supreme Court reversed our disposition of the case, overruling the first point and remanding the case to our Court to address the remaining points of error. Having examined TDN's remaining points, followed by Trailways' points, and finally, appellees' cross-points, we have determined that the judgment of the trial court holding Trailways liable should be reversed and judgment here rendered that appellees take nothing against Trailways, with the remainder of the judgment affirmed.

By its third point of error, TDN complains that the trial court erred in allowing Officer Hector Morales to testify as an expert on the cause of the accident and the speed of the bus. TDN challenges Morales' qualification to testify as an expert to these matters.

Hector Morales testified that he is presently a supervisor for the Mexican Federal Police and that he has been with the federal police continuously in various capacities since the time of the accident. He testified that he has a junior high school education and a year and a half of vocational school. In order to get into the federal police, he took a course which consisted of, among other things, Mexican traffic rules, driving skills and traffic accidents. In addition, he has taken several up-date courses covering traffic accidents and a twelve-day engineering course giving him some knowledge of engineering as it relates to accidents. In these various courses, Morales has been taught to determine the speed of a vehicle by the length of its skid marks, taking into account the vehicle, the road, and the driver.

At the time of the accident in October 1979, Morales was the officer in charge of vigilance, and his duties included patrolling the highway and going to the scene of accidents within his assigned area between Queretaro and Mexico City. He was on duty in the early morning of October 4th when the accident in question was reported to him over his radio and he rushed to the scene. The accident occurred on, or just beyond, a 90 degree curve in the road, approximately halfway between Queretaro and Mexico City. Morales testified that he has traveled that highway many times and is familiar with this curve. The road is a four lane divided highway, most of which has a posted speed limit of 100 kilometers per hour (kph) because it has very few curves. On the curves, however, the speed limit is reduced to 80 kph. Morales testified that the speed limit in Mexico is 80 kph when not otherwise posted, and that, therefore, the speed limit on the curve where the accident occurred was 80 kph.

When Morales arrived at around 7:30 a.m., he observed two tire tracks leading off the highway from the inside lane to the right edge, and the bus overturned in a ravine some 25 meters beyond the highway. Morales measured these tracks at 50 meters by pacing them off. In addition, he observed that the right suspension bar of the bus had broken off. Morales testified that he believed the broken right suspension must have caused the bus to go out of control and contributed to the accident but that speed was also a factor in the accident. Using tables given to him at a course he took with the highway patrol and accepted in Mexico by the engineers from the ministry of communication, Morales testified that the 50 meters of tracks on the highway reflect that the bus was traveling at least 102 kph before the driver lost control. In addition, after leaving the highway the bus continued to travel some 10 meters over flat ground before turning over one and a half times. Morales concluded that the bus could not have safely exceeded 90 kph on the curve and that, if the bus had been going the 90 kph or the speed limit, it would have been able to stop before the turnover which caused the deaths of the decedents.

A witness who, by his knowledge, skill, experience, training, or education, has specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue may express an opinion about the matter. DeLeon v. Louder, 743 S.W.2d 357, 359 (Tex.App.--Amarillo 1987), writ denied, 754 S.W.2d 148 (Tex.1988); Tex.R.Civ.Evid. 702. Specifically, accident analysts and reconstruction experts may testify if the party offering their testimony shows that they are trained in the science of which they testify. Rogers v. Gonzales, 654 S.W.2d 509, 512 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); Clark v. Cotten, 573 S.W.2d 886, 887 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.). There are, however, no definite guidelines for determining the knowledge, skill or experience required of a particular witness to testify as an expert, which is within the trial court's discretion to determine, and the court's determination will not be disturbed absent a clear abuse of that discretion. DeLeon, 743 S.W.2d at 359; Rogers, 654 S.W.2d at 513.

TDN specifically points to a law review note cited in Clark, 573 S.W.2d at 887, that stated as a general proposition:

'As for regular police officers, sheriffs, mechanics, etc., it generally may be said that they lack such training and experience as would qualify them to make a scientific analysis from physical evidence, regardless of how many accident scenes one may have examined.' Note, Opinion Testimony of Expert 'Accident Analyst' Reconstructing Collision Admissible, 38 Tex.L.Rev. 503, 506 n. 14 (1960).

Nevertheless, even if some of the more technical aspects of accident reconstruction are generally outside the competence of most law enforcement officers, our own Court has stated that an investigating officer, once shown to be qualified, may properly base an estimate of speed upon skid marks. Rogers, 654 S.W.2d at 514; see also Adams v. Smith, 479 S.W.2d 390, 395 (Tex.Civ.App.--Amarillo 1972, no writ). It has thus repeatedly been held to be within the trial court's discretion to allow a law enforcement officer to testify as an expert, based on police training schools and experience in prior accident investigations, regarding the speed of a vehicle based on the skid marks left at the scene of an accident. See Rogers; Bates v. Barclay, 484 S.W.2d 955 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.); Adams; Beynon v. Cutberth, 390 S.W.2d 352 (Tex.Civ.App.--Eastland 1965, no writ).

In the present case, Officer Morales adequately related his police training and the tables he had been taught to use in determining the speed of a vehicle from its skid marks. We hold that it was within the trial court's discretion to allow Morales to testify as a expert regarding the speed of the bus and its contribution to the cause of the accident. TDN's third point of error is overruled.

By its fourth and fifth points of error, TDN challenges the legal sufficiency of the evidence to support the jury's findings that TDN failed to keep such a look-out as a person using a high degree of care would have kept, and that it was driving at a greater rate of speed than a person using a high degree of care would have driven.

In considering a "no evidence," "insufficient evidence" or "against the great weight and preponderance of the evidence" point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

In the present case, the testimony of Officer Morales that, based on his knowledge of the road and his analysis of the skid marks and the accident scene, the bus was going over 100 kph in an area where the speed limit was 80 kph and that it would not have been safe to exceed 90 kph, we find that there is some evidence to support the jury's finding that TDN's driver exceeded the rate of speed at which a person using a high degree of care would have driven.

Because there is legally sufficient evidence to support the judgment based on the jury's finding of excessive speed, we need not examine whether there is...