Weaver v. Brink
| Decision Date | 26 March 1981 |
| Docket Number | No. 6269,6269 |
| Citation | 613 S.W.2d 581 |
| Parties | Ted WEAVER, Appellant, v. Raymond BRINK, Appellee. |
| Court | Texas Court of Appeals |
This is an appeal by defendant Weaver from $61,300 judgment against him in a personal injury case.
Plaintiff Brink received bodily injury when a tractor-trailer operated by him struck a cow owned by defendant Weaver, on Interstate 45 near land owned by defendant. Plaintiff sued defendant for damages for his injuries alleging defendant negligent in failing to maintain adequate fences to keep the cow from going onto the highway, in failing to keep the cow within said fences, in failing to warn drivers the cow or cows had escaped from the fences and were on the highway, that defendant was guilty of negligence per se in knowingly allowing the cow or cows to roam unattended on the highway in violation of Article 6971a VATS, and that the foregoing acts of negligence proximately caused injuries to him in the amount of $200,000. Trial was before the court without a jury which rendered judgment for plaintiff for $61,300.
The trial court filed Findings of Fact and Conclusions of Law as follows:
Findings of Fact
1) Defendant's cows had been loose on or near the Interstate 45 right-of-way frequently in the several months preceding the accident.
2) Defendant knew or should have known that his cows had been loose on or near the Interstate 45 right-of-way frequently in the several months preceding the accident.
3) Defendant knew or should have known that the cattle presented a grave danger to the public travelling on the Interstate Highway.
4) Defendant knowingly maintained his cattle behind fences that were unable to withstand rainfalls which filled the creek bed flowing thru his land.
5) Defendant knew that his cattle had escaped many times thru the creek bed after such rainfalls.
6) At approximately noon on the day before the accident, defendant knew that the fences separating his cattle from the Interstate were under water and would probably be down when the water subsided.
7) Thereafter defendant failed to inspect the fences or the location of his cattle until after the accident.
8) The cow involved in the accident was owned by defendant and escaped thru the fence on the creek bed which defendant knew would likely be down from the water.
9) Defendant was notified the night before the accident that his cattle were loose on or near Interstate 45 but failed to remove them from the area until after the accident.
10) On the occasion in question, defendant failed to exercise ordinary care in keeping his cattle from creating an unreasonable danger on the Interstate Highway, and such failure constituted negligence which was the proximate cause of the accident.
11) As a proximate cause of defendant's conduct, plaintiff Brink suffered damages in the amount of $61,300.
The defendant is liable to plaintiff for $61,300.
Defendant appeals on 12 points.
The accident made the basis of plaintiff's suit occurred at 5 a. m. on March 13, 1975 on Interstate 45. Plaintiff was driving a tractor-tank trailer carrying liquid oxygen, travelling 55 miles per hour when his vehicle struck a cow belonging to defendant which was on the highway.
Points 1 thru 3 assert there is no evidence or insufficient evidence to support the trial court's findings 1 and 2, that defendant's cattle had been loose at or near the Interstate right-of-way frequently in the several months preceding the accident, that defendant knew or should have known of such fact, and/or that such findings are against the great weight and preponderance of the evidence.
Defendant himself testified that his cattle had gotten out from the fences and off his property on various occasions; that during a 15 year period his cattle had gotten out 5 or 6 times a year; that he knew the cattle would get out of the fences under the water gaps after a big rain; and that his cattle had been out about 4 times in the 2 or 3 month period immediately prior to the accident. The witness Owen, Police Chief of Wortham, testified that he had...
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...and deductions from the evidence adduced. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962); Weaver v. Brink, 613 S.W.2d 581, 584 (Tex.Civ.App.--Waco 1981, writ ref'd n.r.e.); Garza v. Anderson, 417 S.W.2d 368, 370-71 (Tex.Civ.App.--Corpus Christi 1967, no The jury heard evidence, ......
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M------ H------, Matter of
...all the evidence and decide what credibility should be given to any part of the testimony of a witness. Weaver v. Brink, 613 S.W.2d 581 (Tex.Civ.App.--Waco 1981, writ ref'd n.r.e.); See also Jim Walter Homes, Inc. v. Castillo, 616 S.W.2d 630 (Tex.Civ.App.--Corpus Christi 1981, no writ); Wys......
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