Union Transports, Inc. v. Braun

• Decision Date: 01 August 1958
• Docket Number: No. 3379,3379
• Citation: 318 S.W.2d 927
• Parties: UNION TRANSPORTS, INC., Appellant, v. Charlie I. BRAUN et al., Appellees.
• Court: Texas Court of Appeals

Page 927

318 S.W.2d 927

UNION TRANSPORTS, INC., Appellant, v. Charlie I. BRAUN et al., Appellees.

No. 3379.

Court of Civil Appeals of Texas, Eastland.

Aug. 1, 1958.

Rehearing Denied Oct. 24, 1958.

Supplemental Opinion Oct. 31, 1958.

Second Motion for Rehearing Denied Nov. 14, 1958. 14, 1958.

Further Rehearing Denied Nov. 21, 1958.

House, Mercer & House, James D. Cunningham, San Antonio, for appellant.

Moursund, Ball, Bergstrom & Barrow, Rosson & McGown, San Antonio, for appellee.

COLLINGS, Justice.

This suit was brought by Charlie I. Braun, individually and as next friend of his two minor children, Charlotte Braun and James Allen Braun, against Union Transports, Inc. Plaintiffs sought damages for the death of their wife and mother, Haysel Braun, and Charles Richard Braun, their minor son and brother, occasioned by a collision between an automobile belonging to Charlie I. Braun and a transport truck belonging to the defendant. The defendant filed a cross-action against plaintiff Charlie I. Braun for damages alleged to have been sustained to its transport truck and for the complete loss of the full load of crude distillate which it was carrying. The case was tried before a jury which found that Don Woodward, the driver of the defendant's truck on the occasion in question, was guilty of certain acts of negligence which proximately caused the collision, and that Charles Richard Braun, the driver of the Braun automobile, was not guilty of any of the negligent acts which the defendant alleged were proximate causes of the collision. Based upon the verdict judgment was rendered for plaintiffs and against defendant for a total amount of $129,638.50, and it was decreed that the defendant take nothing by its cross-action. Union Transports, Inc., has brought this appeal. This case and a damage suit filed by Don Woodward against Charlie I. Braun were consolidated and tried together in the court below. The Woodward case has also been appealed, but that appeal is separate and distinct from the appeal in the instant case.

The collision which is the basis of this suit occurred on July 10, 1956, about twelve miles south of the City of San Antonio on Highway 181, near the intersection of the Adkins-Elmdorf Road. At the time of and just prior to the collision appellant's truck driver, Woodward, was driving appellant's truck transport in a northerly direction toward San Antonio with a full load of crude distillate. The Ford automobile belonging to the Brauns was traveling south toward Kennedy. The only occupants of the Braun car were Mrs. Haysel Braun and Charles Richard Braun, both deceased. Woodward, the driver of appellant's truck, was the only eye witness to the actual collision who was available to testify. As heretofore indicated, the jury found that Woodward was guilty of numerous acts of negligence which were proximate causes of the collision. The specific ats of negligence found against Woodward were: that Woodward at the time of and immdiately prior to the collision drove his truck at a rate of speed which was excessive under the circumstances, that he failed to keep a proper lookout, failed to keep the truck under proper control, and that he drove the truck across the center line of the road upon his left-hand side of the road.

It is contended in appellant's first and second points that the court erred in not sustaining appellant's motion for an instructed verdict and for judgment non obstante veredicto. Appellant contends that there was no evidence of any negligence on the part of Woodward proximately causing the fatal collision. Appellant urges in its first and second points and in numerous other points that there was no evidence to authorize the submission to the jury of any of the special issues inquiring about the alleged acts or that such negligent acts were, as found by the jury, proximate causes of the collision. We cannot agree with appellant's contentions in these points.

The rule is well settled that the findings of a jury and the judgment of a trial court will not be set aside if there is any evidece of probative force in support thereof. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286; 3-B Tex.Jur. 449, 450.

The statement of facts is voluminous, comprising more than four hundred fifty pages. In order to confine our discussion to a reasonable length, we will attempt to detail the evidence in support of the verdict in as brief and summarized form as possible. Concerning the speed at which Woodward was operating the truck in question, the witness Watson testified that immediately prior to the collision he had been following the truck for several miles as it proceeded northward toward San Antonio. He stated that he did not actually see the collision because the country was hilly and there was a hill to the south of and between him and the point of the collision which obstructed his view. Watson was operating a Cadillac automobile and testified that he had been driving for several miles at a steady, constant speed of 65 to 70 miles per hour; that he first noticed the truck when it was about a mile ahead of him and about two or three miles south of the point of the collision. He stated that from the time he first saw the truck until the time of the collision he had been gaining on the truck slowly and that in his opinion the truck was traveling five to ten miles per hour slower than he was. The effect of Watson's testimony was that in his opinion Woodward was driving the truck at a speed of 55 to 65 miles per hour. We cannot agree with appellant's contention that Watson's testimony concerning the speed of the truck over the two or three mile stretch that he followed it constituted such an uncertain premise as to amount to no evidence at all. Appellant's complaint is applicable to the weight of this testimony rather than to its probative value.

There was evidence to the effect that at the time of the collision the Ford automobile owned by Braun was proceeding south at a speed of 50 to 55 miles per hour. The Ford car was practically demolished by the collision and there is evidence to the effect that after the collision the transport truck traveled an additional distance of about 150 feet rolling over and over. The evidence further shows that the truck and trailer became separated and were damaged to such an extent that they were a total loss. This evidence had probative force not only on the question of the speed at which the truck was being operated but also on the control which was being exercised by the driver. Universal Transport & Distributing Co. v. Cantu, Tex.Civ.App., 84 S.W.2d 327 (Writ. Ref.) 61 C.J.S. Motor Vehicles Sec. 516, p. 270.

In addition to the above evidence concerning the speed of the truck Woodward testified that the truck was equipped with a tacometer which was a device for making a written record of its speed at any given time. Appellant failed to produce the tacometer with its recorded evidence of the speed of the truck or to explain in any manner its failure to produce same in evidence. The fact that appellant failed to produce the tacometer or to explain the failure to do so tends to strengthen the probative force of other evidence bearing upon the question of the speed of the truck, and is of itself of some probative force on the question. Hazelrigg v. Naranjo, Tex.Civ.App., 184 S.W. 316 (Writ Ref.); State v. Gray, 141 Tex. 604, 175 S.W.2d 224. In our opinion the evidence supported the findings of the jury and the judgment of the court bearing upon the issues of the speed of appellant's truck as being in excess of 45 miles per hour, as being excessibe under the circumstances, and as a proximate cause of the collision. Biggers v. Continental Bus System, Inc., Tex., 303 S.W.2d 359.

The jury found that immediately prior to the collision Woodward was operating appellant's truck across the center line of the highway and upon his left-hand side of the road. The truck was loaded with crude distillate at the time. After the collision there was a trial of distillate three or four feet over the center line and on the west side of the highway, which was Woodward's left side of the road, for over three hundred feet before it terminated near the point of the collision where there were several large puddles which discolored the pavement. Both the truck and the Ford automobile, although badly torn up and scattered, came to rest on the west side of the road. The witness Black testified that he was following immediately behind the Ford automobile; that the Ford was at all times traveling in its proper lane of traffic on the west side of the highway; that he did not actually see the collision because the day was hot and he took his eyes off the road for a moment to wipe his forehead and at that instant the collision occurred. He said that after the collision he saw the truck and trailer turning over at which time they were completely on the west side of the highway; that he saw them come to rest on that side of the highway partly on the shoulder and partly on the pavement. Black was so close to the scene of the collision that distillate from the trailer sprayed his car. There was distillate or fuel oil around the trailer where it come to rest. Sometime after the collision crude distillate was still leaking out of the trailer and running down the side of the highway.

The damage to the front end of the two vehicles supports the conclusion that the left front fender and left side of the bumper of the truck struck the right front portion of the Ford automobile. Also indicative of this fact was evidence to the effect that blue paint similar to that on the Ford car was found on the front bumper of the truck. The physical facts also indicate that the blow to the Ford proceeded from the right to the left side of that automobile tearing and shearing the motor loose. There was evidence to the effect that the bumper of the truck was higher off...