*1 300
grounds alleged in of error to in- writ certiorari were sufficient jurisdiction
voke district court. seq., Rules 344 et 680. See
Texas Rules Civil Procedure. writings
The further estoppel brought question were us; and are not before therefore
forward refused, application for error Shambry reversible error. See Dallas, City Authority of
Housing Wilson, 122,
Tex. (1953); Evaluation, 1037.
Precedent Tex.B.J. Petitioner, CORPORATION, B.M. Respondent. GURECKY,
Louis
No. B-3802.
Supreme Court of Texas. 31,
Oct. 1973.
Rehearing Denied Dec.
ments courts below and remand trial cause to the court. Gurecky was his driving
Plaintiff vehi- westerly cle in Highway direction on County Matagorda the late afternoon September 1968. Gonzalez was driving pickup easterly in an truck direc- speed sixty tion per at a miles hour. began Gonzalez testified that his car by tire, weave deflated applied brakes, his when he car his swerved to left side of the plaintiff’s and struck car on the shoulder his, Gonzalez’s, on wrong the road the road. Gonzalez’s road was a 6701d, 52, Vern.Tex.Civ.Stats., article requires a driver to drive half the roadway. Gonzalez Fulbright, Arno W. Jaworski, Crooker & pleaded by way of an pres- his for Houston, Walker, Krebs, Jr., and Jerry V. ence on the the road that petitioner. for by an emergency faced did Watkins, Kronzer, Abraham & W. W. not special create. relevant issues Kronzer, Houston, and W. Watkins submitted the trial court and the jury’s James respondent. Salyer, Bay City, W. for answers were: Jack you preponder- No. 1: “Do find from POPE, Justice. ance of the evidence that on the occa- question sion in Ascension Gon- Jose against suit Louis instituted this zalez failed to pick-up Corporation injuries personal M. for L. B. completely half of in a collision ve sustained between roadway?” “We do.” vehicle, which hicle and L. B.’s M. being driven Gonzalez. Jose you perponder- No. 2: “Do find acting employee was M. B.’s and was ance of evidence that such action scope jury employment. negligence ?” “We do not.” finding to make a that Gonzalez refused you “Do court, No. 3: find from a believing preponder- negligent, but the trial ance of per that such failure guilty negligence that Gonzalez was proximate was a cause of the occur- se, Gur- judgment plaintiff rendered question rence ?” do.” appeals af “We ecky and the court of civil judgment. firmed you No. 4: “Do find from a perponder- er granted application writ of We ance of evidence that on the occa- the courts ror because question sion in Ascension Gon- Jose in Chris were ruled our decision zalez failed make such Blades, (Tex. 1969), ty person of the brakes as a using ordi- days a few case this court overruled nary care would have made?” “We ap judgment civil do not.” in this final. See peals case became Castro, 493 suggested Pacific Co. The reasons which are for the judg- trial rendition of (Tex.1973). judgment reverse court’s in fa- plaintiff Gurecky jury could believe notwithstand- vor of de- by reason finding weaving road ing obtain failure to par- things happened flated the defendant presented evi- lost quickly, are that Gonzalez (1) ticular low Thus any being his car reason of the tire. for his dence *3 road, a in the that there is some record wrong (2) evidence evidence presence on car to excuse for Gonzalez’s tire deflated caused Gonzalez wrong a ex- permissible is the road. swerve to the left not being his on cuse which justified road,
wrong side and (3) Gonzalez uphold seeks to Plaintiff a request an issue and obtain judgments for the additional in fact ex- finding that his excuse claimed that a cannot fall within deflated tire isted. range which permissible limited excuses legislative justify
will one’s violation a explained conduct, by our standard of opinion Contrary Metals, Impson con decision in appeals plaintiff’s v. Structural court of civil Inc., tention, (Tex. 1972). 487 evidence Gonzalez introduced some disagree plaintiff’s again He that contention. his claimed testified excuse. hour moving sixty In this court called attention was at about miles permissible some of excuses for viola plaintiff’s car at a distance when saw legislative by quoting than tion of “approximately more standards described as punc (Second) from Restatement of Torts feet.” said that tire was 400 He is tured, (1965). after he tried to control 288A such excuse which One listed actor is confronted stop. pickup car and He testified that the by an due to his mis hard there was veered that Refining The right, hole so he tried conduct. Phoenix deep that on Powell, stay highway. (Tex.Civ. v. 251 892 pickup steer Co. S.W.2d justi said, App.1952, é.), r. having “I When ref’d n. He was time.” presence wrong a driver’s if he the left fied asked decided to turn to smoother, “All I the road answered, where it was the blowout of tire. us draw plaintiff would have a distinction to control vehicle trying to do was puncture He pavement.” between a it on blowout of top tire, creating as the fac and deflation of a he did make a brake said opinion, emergency. of an tors our going while car He rapid.” in this very of the case shows happened that what “was immediately It weav the events be said, “I was trouble. and actions having impact of the two cars fore occurred came ing.” accident, After the proof a matter few seconds. If upside pictures to rest down. Some driving had shown that been record, they do not appear in the tire sixty awith deflated tire at miles an hour record appear from the nor it show does period time, understandably longer for a out, although Gonzalez that the tire blew the court hold as a could matter law did. testimony place in his said one condition tire would aft tire he looked at the said that serve as for the pickup’s swerv was cut tube er the wreck and ing side of the road. In our out was protruding He said the tube two. opinion, suddenly deflated even Highway Patrolman A Texas of the tire. blowout, may absence of a constitute accident testified investigated the who permissible car’s shortly the acci tire he examined the road, and there but tire not cut supports He said that the dent. some evidence that conclu testimony, a sion. all of this intact. From
303 charged in public was law plain whole third reason which the safety knowledge provisions. We appeals of those of civil tiff and the court may give the said further that the court disre give upholding the trial court’s jury an definition concern instruction or to find de gard jury’s refusal defendant, ing any claimed excuse which within is that the fendant Metals, Inc., limits of B., a find v. Structural request failed to and obtain M. 1972). (Tex. Thesé is 487 contention ing an excuse issue. That practice justify understandable, changes the trial this entirely because our deci trial of this cause to the Blades, court’s remand Christy sion justice. Scott v. the interests required finding. such a That (Tex.1969), Liebman, (Tex. 1966). case, however, deci was overruled our Pacific sion below are of the courts *4 rule in Tex (Tex.1973). is remanded cause reversed as is that seeks statu one who trial court. present evidence tory violation some must permissible of a excuse for his STEAKLEY, dissents; J., WALKER violation, whereupon party with join. JOHNSON, JJ., (plain persuasion negligence burden of jury finding Gurecky) tiff must obtain a negligent mea adversary
that his STEAKLEY, (dissenting): Justice prudent by or man sured the common law diffi hoped the thrust our I had that standard. be held un in Castro cult decision would in decision der the restraint of our earlier opinion, our the trial court Impson. I feel Impson,2 as I understand negli properly submitted common law opinion ma this under the is not so gence inquired de issue whether the ex jority. Obviously, just any so-called negligent. jury fendant was answered have, do; otherwise, we cuse will not favorably issue defendant. effect, negligence abolished doctrine From the above it also our discussion is per se. opinion courts in error below were disregarding jury’s answer to that here, vainly ma- Gurecky, had the victim rendering judgment issue and right shoul- onto the neuvered vehicle plaintiff. this, however, regard We he before der of side of the proper case for a remand for another trial by the struck truck driven Gonza- upon rather than a rendition judgment over the left Gonzalez had crossed lez. verdict the defendant. court’s This undisputed in an viola- side of the substantially decision in Castro altered the tion of statute. But the submitting jury method of a case to Gurecky’s have been reversed favor party when a claims for his vio evi- holding that was “some there lation of a statutory standard care. We dence the record of excuse for Gon- changed practice only in the man on the side of the zalez’s issues, submitting special ner of but we road”, invoking Cas- thus Castro. Under
also authorized more extensive instruc op- tro, course, given is jury may tions. said that the trial in portunity explicitly determine whether Legislature form the has es claimed excuse rested reasonable tablished a uniform standard of con safe fact. by stating provisions stat duct may ute the court also instruct is problem The threshold not whether jury that as the negligent. undisputed defendant as well It Metals, Inc., 1. Pacific S.W. Structural (Tex.1973). (Tex.1972). 2d 694 English and tes- speak crossed over left interpreter through tified violation of statute when something difficulty. He said that went Gurecky. problem ran down wheth- er the raises an sufficient rear tire on evidence gave feeling get negligence per him him the that was out under se, flat; right, that the truck veered to the and under the rule announced Cas- deep hole” whereupon he to avoid “a tro. tried side; on the ditch is articulated The claimed excuse here keep from pulled the left to the truck to “pickup majority be that the right; and going the ditch toward weaving on the road of the de- reason apply his brakes until that he did not things happened flated automobile, approaching saw the quickly, and that Gonzalez lost right time he As I his car the low tire.” agree the road. and Gonzalez testimony, particularly that of read the testimony upon controlling cir- their Gonzalez, probative regained cumstance that Gonzalez raising neglect excusable thus issue of crossing side of the road before the second Impson-, holdings in under the Castro ensuing the left and the collision. Gur- contrary, the causative factor of ecky swing testified that he saw the truck a deflated tire *5 into his lane return to the and thereafter unnecessary later and decision but a road; right side of the that he moved to it, is, point as I see Gonzalez. The crucial right pos- give as clearance as much in that the violation conduct Gonzalez sible; the getting and that after into back of his own statute was deliberate action right swung lane the to the left truck back and, doing as falls within stated the road and to the shoulder of the The was the realm of due care. collision highway collision where the occurred. not the result of created also testified that he had left his occurrence; it was caused an excusable “having and lane when this trouble went ill-ad- resulting from a violation lane, pulled into the but I had back. other and conduct. vised But, my upon getting applied I had closer making my whip brakes back end around them The circumstances as I understand point and that car ran into me.” At one these. The collision from the record were apply his that he did Gonzalez stated 35, Matagorda Highway occurred on pulled back brakes until he had Sep- Texas, afternoon of County, on the right and that “when seen this car I asphalt highway is The tember brakes”; and, fur- very applied I close two lanes with surfaced and consists of ther, that this the time he had was first adjoining the outside improved shoulder applied the brakes. He also testified and highway straight The each lane. truck his side the front end of his was on area the acci- flat terrain over he the hard highway when made The sur- The weather was clear. dent. application. brake Immediately dry. face collision, pro- The who called preceding patrolman westerly approxi- the scene and within ceeding in a direction Gonza- arrived mately As the two 20 minutes stated that he ex- proceeding to the east. lez another, the approaching one amined the deflated tire and not find were did vehicles any lacerations holes that a crossed or to indicate truck driven occurred; highway and collided with blowout had he said “the tire left side of the point impact anything.” was was intact ... no holes Gurecky’s car. or adjacent markings The officer also examined improved shoulder Gur- remaining pavement right roadway. he said ecky’s half of which text, clearly expressing not make “a that the did forecasts established dissenting “gradual agreement the views sharp made a exit with swerve” but court, intermediate strict- off the road.” Justice will be ness unexpected appears de- It thus that the determining excuse for whether viewed flation of in motion series set penal raised. violation statute during made two events which Gonzalez pass attempt to there was an operating brought decisions about distance prohibited automobile resulting violation and the The violator a highway intersection. with the collision vehicle. the viola- a number of excuses offered swing first was decision to the auto- passed have tion: could the left to avoid referred what Gonzalez reaching the intersection had mobile before (about hole or ditch on the speed; its unexpectedly increased it evidence) was no other toward stripe yellow there was which, said, veered; the truck had passing; from highway prohibiting him ap- second was the to make hard decision ob- that it dark trees house plication brakes at a time when intersection; scured the traveling truck was sign small; although he was fa- required by road statute. recall highway, miliar in- particular of this exact location undisput- under the It manifest to me tersection; automobile since the facts that the mak- ed act of Gonzalez righthand was on the extreme hard the brakes oc- ing a turn did not believe would highway he when, time under his testi- curred legally rejecting justifia- these as left. mony, apart the initial distrac- statute, we ble excuses for violation aof “feeling” tion of Gonzalez that wrote: flat, tire gone had suc- *6 cessfully the truck back to the steered fall the above “All of matters right traveling care, and was his side ordinary lack of the realm of —or highway. This testimony was also the deliber- his move care. The driver made Gurecky. agreement knowledge Both were in and ately, the law traveling truck had returned and was with at least notice of the side of the no There was intersection. veering zig- and any particu- the initial impossibility, no reason for zagging right. incapac- emergency, left back to no hurry, So lar and apparent regained had seems risk of ity. problem greater sufficient have If there was harm is not involved. ensuing only statuto- avoided violation after the emergency, it was fact, was, point collision. There due in begun, ry by the ill-cho- new traffic situation created conduct.” his own deliberate large part to application, sen brake and one 694 at product particular of this action on test thus indicated Under the part Braking Gonzalez. turns raising justifiable excuse attempted by the manner Gonzalez was delib- are acts of violator whether required to the same and it on to exercise failure erate and constitute highway, himself and Gonzalez impelled by care, responses due or were the left said this caused the swerve to to circumstances and attributable path and into safeguard, is an doing. This essential automobile. after- situation nature of the since in the easy are explanations and excuses view, the-fact justifiable is not or con- faith good by, to come whether Impson raised under these circumstances. trived; holding in under directly required finder is fact for the alleged
determine whether the basis fact rested reasonable contention These the cause of the violation. require also the rule that
considerations sufficiency of the evidence of preliminary
is a decision of the matter for Refining
trial court. See Phoenix
Powell, (Tex.Civ.App.1952, e.). r. A blowout ref’d n. reasonably thought good
which is to be
condition was mentioned category
situation that “could come” under 288A,
2(d) (Second) Restatement (1965),
Torts as “an not due However,
his own this ref- misconduct.” presupposed
erence di- a traffic violation itself,
rectly attributable the blowout caused, here, intervening op-
and not
erating by the initial un- required acts not
expected occurrence, and but resulting collision violation and
would not have occurred.
I would affirm
Gurecky. JJ., join JOHNSON,
WALKER
this dissent. *7 JOHNSON, Appellant, Lewis
Herman Appellee. Texas,
The STATE of
No. 47575. Appeals of Criminal Texas.
Court
Nov. Bruder,
Melvyn (Court Dallas Carson appellant. appointed), Henry Wade, Atty., and Dist. Jerome Dallas, Croston, Atty., D. Asst. Dist. Jim