*1 253 single hearing In a amendment has ordered of cer- been specialized authorizing transporta- tificates held carriers tion of the certificates are of 130 commodities. One hundred six scope are or state-wide remainder confined more less local areas. procedure dealing quarrel I do not mat- single hearing. joint hand,
ter in a On the other the amend- represents granting ment each certificate certificate right which, applicable statute, only under the can based represénts need for the service. Each amendment therefore separate by proof. my new supported service should be In simply the record does not a conclusion that justify reasonably there is supporting substantial evidence the whole- granting sale all may amended certificates. There reasonably supporting granting substantial evidence of some of them. purpose analyze It would serve no useful the evi- length. dence
Opinion January 15, 1958.
Rehearing overruled March
Dudley R. Cloud Et Al v. Kenneth Zellers
No. A-6440. January Decided 29, 1958. Rehearing overruled March (309 806) Series *2 Antonio, Hebdon, Eskridge, all Hebdon, & Jack Groce San petitioners. for Appeals erred
The Court Civil inspector, contractor, Highway a con- petitioners, State signs and flares and that cerning recollection about their satisfactory, and that they factual error, testimony, was harmless. if Weaver of said admission 95-97; Ry. 2d Gross v. Dallas Benson, 254 S.W. judgment. 113, 117, Err. Dism. Co., Correct 2d Term. & McAllen; Rosson & McGown Freeland, Cox, Patterson & Antonio, respondent. Rosson, for M. of San Frank opinion of the Court. Mr. Justice Calvert plain- Respondent injury Zellers personal case. This is Cloud, Bruce Dudley B. R. Cloud court trial tiff Dudley & partnership name of R. Cloud doing business in this parties referred will be Son, defendants. defendants. plaintiff opinion Trial resulted in a verdict and before judg- the defendants. The reversed ment and for re-trial. remanded cause Highway
Under contracts with the de- State Commission engaged fendants were in the reconstruction of a section of U.S. Highway Zapata County. required in83 The contracts the re- highway construction of and the construction aof bridge point new over and across Burro Creek. At the where the being highway construction work was erly runs in an done the east- bridge westerly direction. the new over While Burro incomplete necessary highway Creek was it was the new point temporary barricaded at that and that a detour to and provided traveling over the old public using road for the *3 highway. Accordingly, a short detour was built to the old road south highway permit of the by-pass new to traffic to the section bridge where the opening new was located. The or mouth of bridge the detour road east of the was some 230 feet wide. A about plaintiff, traveling 12:30 a.m. the while in a west- erly Highway 83, direction over upon came the barricade east and, seeing of Burro sign Creek the detour on the barricade
pointing south, to the undertook the to enter and use detour road. hardly He road, however, had entered the before his automobile dropped off of the south embankment and thereof turned over several severely injured. times. As a result he was alleged
Plaintiff’s suit primarily was based on acts or failing omissions of the proper signs defendants in to have warnings and flares traveling public dangers to the of the in- cident to the By way existence use of the detour road. pleaded, among defense matters, the defendants other that warn- ing signs placed according flares were and maintained requirements Highway the they Department of the State and that according placed were to directions of the resident state engineer highway daily. who thereafter checked them This plaintiff’s objection. was read to over the Dudley permitted On the trial testify, R. was Cloud over objection, Farias, highway engineer, inspected that Mr. resident warning signs placed by the him at and near the construction project anything and never said to him presence about “the or signs. permitted absence” of Mr. testify, Farias was over objection, signs inspected placed project by that the at the the signs defendants; places that the where placed were to be designated plans personally; him placing that his signs satisfactory and met project was
of approval; end of the detour was the construction of the east that required satisfactory approval, his met with warning signs properly placed and maintained. flares and reading in- objected pleading and the Plaintiff to the ground mentioned troduction above opinions and con- province constituted it clusions, invaded official injected care of the the standard into the case highly ordinary prudent person, and was than rather that of Appeals held prejudicial to the The Court Civil overruling objections and further the trial court erred rights plain- prejudicial so to-the held that the error was require a tiff as to re-trial. agree Court Civil permit reading pleading and to admit
it was error opinion testimony of cases cited Cloud Farias. See so, Appeals, 469-470. Even justified unless judgment the trial reversal of court’s conviction leads to the examination the record as whole probably did cause to cause error calculated give give which will to all issues the answers did support Rules of Civil judgment. Rules 434 and Procedure. upon may rest either trial court’s the case *4 negligence findings of all
jury the defendants which absolved findings proximately caused plaintiff’s injuries upon that were or negligent trial omissions. If the of his own acts and certain findings judgment supported solely by jury on were court’s negligence to affirm primary not hesitate issues we would Farias testimony of the witness reversal. The strongest possible that the defendants evidence constituted the signs warning and negligence placing guilty of no in were guard south em- rails on the flares or that the failure to hold, negligence. would road was not bankment of detour hesitation, calculated to cause was that without jury that the defendants were probably to find and did cause neg- primary any inquired in the negligent respect about in not calculated to cause was ligence But issues. whether plaintiff’s jury that to make probably did cause proximate his cause of acts and omissions own matter. injuries is another Appeals that the admission Court of Civil reading probably and the evidence caused findings against to make in answer to
contributory issues is what us an seems to based following language premise. premise is unsound in the found opinion (302 470) contained in the 2d : S.W. whole, ap- an
“From examination of the record as a it is parent the accident as a of some act or occurred result act, acts, or part appellant appel- failure to on the of either or complained erroneously improperly lees. The evidence placed unqualified approval before the and ratification Highway every Department State of each and act done not appellees, done in connection the entire detour question, coupled complained of, in pleadings which enlarged emphasized importance upon outset testimony, this left the in their search some act of causation, appellant. nowhere to look but to the conduct of Hence, think, improper pleading complained we evidence upon of negligence every was relevant issue or jury. submitted to the the situation here We believe presented squarely Judge falls within the rule down laid Gar- wood, speaking Benson, Supreme Court, for the Weaver 50, 152 Texas harmful effect of the error is manifest.” indeed, did, give example
In Weaver v. Benson an this Court which, although primary negligence of evidence offered to show defendant, plaintiff’s of a was also relevant negligence, lack it. 152 Texas always By example: ways 2d 95-97. But it is not so. If night-time erroneously permitted collision case a witness testify to man, A, on behalf of an the defendant that who was honest approach- told the had witness seen the defendant’s ing brightly, lights burning its it could automobile and hardly be said the evidence relevant on issue plaintiff’s equipped whether the automobile was with defective Moreover, only liability brakes. if those were the operating case and a his found that the defendant was headlights burning, automobile without and further *5 operating the was his automobile defective brakes negligence proximate a cause the which was on his setting collision, appellate hardly justified an in court would a on the verdict on aside for the defendant entered theory being improper the convinced the evidence charged, negligent respect the defendant the was not causation, in their search was left nowhere for some act of plaintiff. look but to the Neither should a reversal conduct bearing ordinarily improperly the evidence on ordered where which, answered, independently support judg- issues as will the ment, supported by and the answers such are well other issues competent and relevant evidence. may categorically objected
It testimony be stated the directly in this case was evidence the issue of not on factual plaintiff kept proper approached whether the a as he lookout detour, approached the or on the the issues of whether driving speed detour he was at a rate of failed proper to have his issues were control. Those against testi- answered On last two the issues mony bearing. could have had at most indirect Particular testimony emphasis by plaintiff is possibility laid on the that the failing by confirming non-negligence the defendant guard flares rails on the south side of the detour bore Perhaps weightily contributory negligence. testimony did a basis for an infer- furnish circumstantial jury ence that “in the detour” the speed at an have his excessive rate of failed to control, car under the inference but drew testimony “possibility” from the to us more of a and less seems inference, record, a “probability.” rather remote one. question prejudicial character contributory
as it much the bears on issues is question same as the in Mrs. with which we concerned Company Hearn, Bread Baird’s misconduct, question 646. That case us on a but reached legal problem problem this case. was the same as the Through the other their statement made one of number they jurors given testimony, which in the Hearn case were consider, supporting de- entitled or to not to have negligence. The guilty of fendant’s jury it was contention case, negligence, as in this absolved defendant negligence, guilty found the of causative refusing improper as in this case. In to hold that finding it did probably jury make juror caused the issue, emphasized that we make “was juror on that issue impact statement em- also 2d 650. rather remote inferential.” evidenc- a verdict phasized returned the fact that had intelligently ing discriminating to answer effort *6 and, conscientiously properly from the them. evidence before charge thirty-six jury containing
This case went to the on a special regard acts issues. Eleven of five the issues were with to negli- negligence charged against acts of the defendants. The gence leaving detour, gravel a fail- involved the of loose on the place sign gravel, ure presence to a loose a to warn of the place sign failure tour, warning to de- east of the barricade place detour, a failure to the flares south side of place guard a failure to The rails the south side of the detour. jury detour, gravel found that there was the no loose that sign defendants place did not fail to east of the barricade warning detour, and that to failure flares guard negligence. rails on the south side of the detour was not Twenty-one contributory of the issues related to nine acts of negligence charged jury to exonerated plaintiff neglignce charges. rspect to five of the It found approaching that he was plaintiff the detour the was not driving speed fifty his per automobile at a in excess of miles hour; apply that he did not fail to lights when his brakes he was temporarily oncoming automobile; blinded of an that he did not turn his automobile to the left sooner than a person ordinary prudence done; pass- would have after that ing oncoming did not automobile he wait for 100 feet be- raising headlights fore high, his from low and that he did not to reaching turn to the left before the detour. In addition foregoing findings that the accident was not sole- ly bright lights caused automobile temporarily plaintiff, which blinded the and that the accident unavoidable. testimony does not contend with the probative Farias excluded there remains no force evidence support negligence issues, answers answers, excluded, nor even so are contrary great weight preponderance to the the evidence remaining ourselves, clearly wrong. as to there- content fore, sup- with the statement the record contains evidence porting and with ob- clearly servation that the verdict indicates a as whole rather discriminating, intelligent conscientious and consideration say separately. of each issue If of- we should testimony probably fensive caused the approached find that as he the detour the speed at an excessive rate of his and failed to have control, the fact how could we account for the same did not find that cause reaching left turned to the left turned to the the detour or before *7 turned, ordinary person prudence than a of would have sooner (contrary just it also note on which issus was relevant? We Appeals) opinion expressed by that be- the Court of Civil by the defendant of absolved lief their search did not “the casual leave causation, of look but to the conduct some act of nowhere to found in answer to issues the” The could have bright solely caused the accident was submitted lights which, according" to the approaching of himself, temporarily pleading of the him, un- accident was or it could have found that blinded only Instead, rejected all of save theories causation avoidable. himself, acts omissions a limited number of respect probably say in that and we cannot that its verdict testimony. For other cases improper caused holdings made, v. Yellow been see Valdez in which similar have 716, history, 715, Co., App., 2d no writ Texas Civ. 260 S.W. Cab Co., App., 131 Ry. Dallas Terminal Texas Civ. Gross v. & judgment. ,117, dismissed, correct 2d writ S.W. 113 Special any of have omitted discussion or consideration failure which the Issue No. 32 answer to at apply his brakes slow his automobile lighted pots ahead of him was the time first saw two flare he negligence. of Appeals that the form the The held Civil Court weight the evidence and amounted a comment on the issue evidentiary. purely inquired Since the matter about was negli judgment may rest other is gence any immaterial. in the form of Issue 32 error Appeals four other Plaintiff had Civil before which, sustained, require an affirmance points if would error duty to those judgment It is our consider court. 37, Co., 2d points. Morten 127 Texas Inv. Jordan 359, 241, Bailey, 242; Ry. 250 Term. Dallas Co. v. & at the points are directed form Three of respectively, inquire, and 20 which Nos. Issues detour,” plaintiff was if, “as lookout, and keep proper speed, failed to rate control. failed to his automobile have quoted objected to be erroneous because to and are said wording particular place was indefinite and did fix the point leaving highway inquired about, the matter thus speculation conjecture jury. The fourth point complains photograph. an aerial introduction of points These of error are without merit and are overruled. judgment Court of is reversed judgment of the trial court is affirmed. Opinion January 29, dissenting
Mr. Norvell, Justice my opinion In salvaged the trial court’s cannot be *8 by application of the harmless error rule. recovery jury’s was denied a because of findings absolving convicting defendants of plaintiff of contributory negligence. majority holds, I agree, improper that judgment evidence was received the trial court. If the upon rested alone that defendant negligence, was free from anyone seriously I doubt if would con- tend that a ordered, reversal should improper not directly evidence bore upon inquiring issues as to whether or not proper signs defendant had erected and main- barricades tained a roadway detour, guardrails, suitable adequate for the flares and the plaintiff guilty like. However of contributory negligence (a) approaching in that “as he was place driving detour at question, (he) the time and in greater speed person ordinary aat than a of prudence would drive under the same or similar circumstances (b) approaching that “as he was place the detour the time and in question, (he) keep failed person to such a as lookout ordinary prudence kept would have under the same or similar circumstances,” (c) that “as he was the de- place question, tour at (he) the time and in failed to have the person automobile he was under such control as a ordinary prudence would have had under the same or similar circumstances.”1 finding penal
There was no had violated statute contributory negligence per so in se is not the case. majority upon jury’s Special 1. The does not rest its decision answer Issue say
No. I and will discuss it other than that here also I am in accord Appeals. Court al- inquiring as to defendants’ we examine the issues
When time and leged negligence, phrase, encounter the “at we also and, course, place under the standard question,” in negligence by definition ordinary person prudence, the term “same, circumstances.” or similar embraces the element of negli- mind, logical my distinction can drawn between To no referring to gence relating and those the defendant party not determined as are These issues to either say time, can independent How we and circumstances. signs, devices, warning lights, elements such as factual conception of the jury’s etc. which enter into and determine “place case “circumstances” question” and the basic upon bearing inferential only an indirect insubstantial have the case, facts of this issues? Under testimony of Appeals, the pointed out of Civil negligence, likewise defendants of Farias which tends absolve negligence. I am tends to convict Appeals of Civil the discussion of the Court accord with full upon applies this question rule as harmless error opinion. prolong this need not farther and hence case of the Court of Civil I would affirm respectfully entered accordingly dissent from the order the Court. January 29,
Opinion
Rehearing March overruled *9 Company v. Phil Dor Connell Construction Corporation Plaza 29, 12, January Decided No. A-6414. Rehearing March overruled 311) (310 2d Series