Waggoner v. Clark

• Decision Date: 29 September 1969
• Docket Number: No. 7953,7953
• Citation: 446 S.W.2d 737
• Parties: William Lloyd WAGGONER, Appellant, v. Harold CLARK et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 737

446 S.W.2d 737

William Lloyd WAGGONER, Appellant, v. Harold CLARK et al., Appellees.

No. 7953.

Court of Civil Appeals of Texas.

Amarillo.

Sept. 29, 1969.

Rehearing Denied Nov. 3, 1969.

Crenshaw, Dupree & Milam and Cecil C. Kuhne, Lubbock, for appellant.

Edwards & Brackett and James R. Edwards and Quinn Brackett, Lubbock, for appellees.

JOY, Justice.

Suit for personal injuries from a rearend auto collision. From judgment for plaintiff, this appeal was taken by the defendant. The parties are referred to herein as they appeared in the trial court.

Plaintiff's automobile was proceeding south on College Street in Lubbock, Texas, in approximately the middle of the 2600 block when a worker either walked or ran out into the street signalling for plaintiff to stop by waving his arms. Plaintiff proceeded to a near normal stop, at least no evidence was presented of a sudden or unusual stop. Defendant's automobile was proceeding in the same direction and traffic lane at approximately the same speed (about 25 m.p.h.) at a distance of about 50 feet 'or about four car lengths' behind plaintiff's vehicle. Defendant looked momentarily to the side to determine his location by a house number and when he looked ahead again, he was upon the plaintiff's vehicle and struck the rear-end thereof. The case was submitted to the jury on 17 special issues. By their answers to the issues, the jury found (1) defendant kept an improper lookout, (2) defendant's improper lookout was not a proximate cause, (3) no excessive speed on defendant's part, (4) defendant did not fail to make proper application of his brakes, (5) plaintiff-driver did not stop more suddenly than an ordinary prudent person, (6) the stopping of plaintiff's automobile by the worker was not the sole proximate cause, and, (7) answered a number of damage issues in amounts totalling $2,850.40. Upon plaintiff's motion to disregard the jury's answer to Special Issue No. 2, the proximate cause issue, the court disregarded the answer and entered judgment for plaintiffs in the total amount of $1,810.02, after allowing a credit of $1,040.38 that had been previously paid by defendant's insurance carrier.

Appellant's single point of error is directed to the trial court's action in disregarding the proximate cause issue answered favorably to the defendant by the jury. Rule 301, Texas Rules of Civil Procedure provides that the trial court may disregard any special issue or jury finding that has no support in the evidence. Therefore, we must look to the evidence in the light of the elements of proximate cause in order to determine whether or not proximate cause was established as a matter of law as found by the trial court . Proximate cause was defined in the court's charge as follows:

'By the term 'proximate cause' as used in this charge, is meant that cause which, in its natural and continuous sequence, unbroken by any new and independent cause, produced the result complained of, and without which said result would not have occurred, and before an act or omission can be the proximate cause of said result, it ought to have been foreseen, or reasonably anticipated by a person of ordinary prudence, in the exercise of ordinary care, that the result complained of, or some similar result, would occur naturally and probably in the light of the attending circumstances. There may be more than one proximate cause .'

Neither plaintiff nor defendant complains of the instruction of the jury on proximate cause. We think the answer of the jury to Special Issue No. 2 has some support in the evidence in the light of the instruction on proximate cause. Proximate cause involves (1) cause in fact--that cause that produces an event and without which...