*2 JUNELL, Before MURPHY and SEARS, JJ.
OPINION SEARS, Justice.
Appellant,
Johnson,
Wayne
Morris
while
in the
scope
employment
course and
of his
appellant,
Corporation,
with
Texas Brine
was driving an
wheel truck that
pickup
ap-
collided
driven by
with a
pellee,
brought
K. Lofton. Lofton
Andrew
against
personal
for
appellants
suit
the
in-
juries
collision and
jury
sustained
the
the
$113,500.
awarded him
The
amount of
35%,
covery
by
which
was reduced
negligence
percentage
comparative
at-
by
jury.
tributed
Lofton
This court
judgment
reversed
of the trial
court.
Lofton filed a writ of error
the Su-
and,
preme
curiam opinion
Court
Supreme
argument, the
without oral
Court
judgment
reversed the
of this court1 and
held that this court failed to consider all
reversing
jury’s
evidence before
addition,
verdict.
Court
clearly
held that this court did
detail
supporting
how the
verdict
evidence
v. Texas
was insufficient.
Brine
Lofton
(Tex.1986).
Corp., 720
S.W.2d
history
appeal
A
of this
review of the
necessary.
original submission
this
On
opinions
by
issued
were
this
opinion held
majority
court. The
that the
support
was insufficient
jury finding that Johnson’s
The dis-
cause of the accident.
senting opinion held the evidence to be
(Tex.
rehearing,
Corp.
ond motion
Texas Brine
ly disagree Court’s con- REX BUELLER that, appears
clusion “it the court did not fully determining consider the evidence in Bueller, employee appellant sufficiency points.” we will Corporation, Texas Brine testified that again review all the evidence that has driving wheeler Johnson was any relevance to the issue of as a scope employment in the course and of his proximate cause of the collision. Corporation. Brine He further with Texas tractor driv- At the time of the accident Johnson was testified that the Johnson was 16,000 2917, ing weighed approximately pounds, the eastbound lane of FM 10,000 posted speed approximately pounds, a two lane road with a limit the trailer 45,000. fifty-five miles hour. Prior to the acci- approximately and the load of brine dent, Lofton had been northbound on FM weight the total of John- testified that 2004, 71,000 which dead ends at FM approximately 2917. On son’s vehicle was south side of FM several hundred licensed pounds that the vehicle was reaching feet before FM there is 80,000 pounds.
right turn lane for eastbound traffic. Im- mediately prior accident, Lofton’s APPELLANT JOHNSON pick-up right truck inwas that turn lane very famil- Johnson testified that he was approximately 300 feet inter- west configurations as iar with the road and the section of FM 2917 and FM and he many highway he had FM 2917 on traveled facing was west rather than east. In other immediately occasions. He testified that words, wrong Lofton was on the side of the fog very accident the facing wrong road and As direction. deposition heavy. In his he testified Lofton, approached Johnson Lofton drove “he not see his hand in front of the could pick-up perpendicular FM 2917 his truck of the car.” At trial Johnson testified hood path and in the direct truck. Johnson’s traveling approximately forty that he was midsection struck the left forty-five hour at the time of of the im- of Lofton’s truck and the force and, deposition collision in a he testified pact Lofton off the north side of the drove approximately forty-five that his road. hour. He indicated that fifty APPELLEE LOFTON but really could not remember fifty miles was less than that he knew it Lofton testified that to the accident and, further testified hour. attending welding class he had been traveling in passed him several cars had upon leaving p.m., the class at 7:30 he went and, immediately opposite direction wiped off the parked to his him, passed after one or questioned more cars he saw the accident. When about the headlights right Lofton’s on the shoulder severity fog, Officer Pettit testified facing road his direction. He it patchy fog, heavier in some testified that as soon as he saw Lofton’s others, spots than and that at the time he headlights, pick-up pulled Lofton’s out on arrived at the scene of the accident it was highway front of him. Johnson tes- very heavy. tified that he tried to turn his truck to the important It is to note that Officer Pettit up left and lock his brakes at the same testified that he did not take measure- time, but that he struck Lof- immediately ments of the skid physi- marks or response truck. questions ton’s cal evidence at the site of the accident. He garding the distance between trucks Department testified that of Public first when Johnson saw Safety only takes such measurements testified, right “I top of him.” they when are concerned about the previously by deposi- Johnson had testified the vehicles involved in the acci- approximately tion that the trucks were six *4 dent. Officer Pettit was cross-examined apart when he feet first saw Lofton. Later regarding report his accident and the fact testimony of an accident reconstructionist there was no mention of Johnson’s established this distance to 120 feet. report. Although Pet- Officer Johnson testified that he cut his wheels to qualified tit was an expert traffic inves- “go the left an effort to with him.” It tigator, the court refused him testify to let was Johnson’s belief that the regarding as to the cause of the be less severe if he turned his accident. same direction that Lofton’s truck was traveling. Johnson further testified that RUIEBY
immediately after the HUNT accident he exited his truck to check on but that regarding damage Mr. Hunt testified people already three other were there. to the wheeler truck owned appellant Corporation. Texas Brine He es- JACK PETTIT cost of tablished that the reasonable Depart- Pettit an officer for the Jack necessary $12,258.17. repairs was Safety approximately ment of Public years experience twelve and one-half as an RALPH CLARK investigator. accident He testified that he Mr. Clark testified that he was a friend p.m. was notified of the accident at 7:55 of Lofton and his family, that he was on and arrived at the scene of the accident at highway night of the accident and p.m. 8:22 photo- Officer Pettit took no very foggy evening. that it was a How- graphs any and made no measurements of ever, on cross-examination it was estab- physical evidence at the scene lished that he was on a different road some accident. He testified that there were no two hours to the accident. drivers, known witnesses other than the and that Johnson told him Lofton’s truck CHARLES RUBLE
swerved into his lane and Johnson tried to take action to avoid the collision but was Mr. Ruble testified that he had been with unable to do so. Department for the San Antonio Police many years years and that for ten he was
Officer Pettit talked with Lofton at captain police and commander of the acade- emergency hospital shortly room of the my. qualified expert He was as an acci- investigation after his at the scene of the investigator analyst. dent Mr. Ruble accident. Lofton told Officer Pettit that he only expert investigator was the accident memory anything had no related to the Further, analyst testify. or accident Mr. Approximately accident. two to three only person any Ruble was the who took again months later Officer Pettit talked at physical no measurements of the with Lofton and Lofton still had recol- testi- leading up to the scene of the accident. Mr. Ruble lection of of the events days apply legal analysis fied that he six arrived at the scene called on to to the upon summary after the evidence and avoid conclusions.” accident. Based his investi- gation prepared drawings several scale presented at trial is When the evidence of the vehicles and the evolution of the examined, particular Mr. Ru- thoroughly drawings collision. These were introduced that, testimony, undisputed it “Lof- ble’s into evidence. Lofton also introduced some less than jumped ton front photographs photo- into evidence. These impact.” page two seconds before At graphs testimony do not contradict the following of facts is a of the statement drawings presented by Ruble. question posed to Mr. Ruble and his an- swer: Mr. Ruble testified that Johnson’s skid Question: you way Is there turning marks in his were lane and were give your opinion concerning tell—to us the left. He also measured and identified actually how much time Mr. Johnson had Lofton’s skid marks from the of im- to react based on the of the ve- pact, sideways, they where impact? hicles to this stopped and came to final rest in the ditch Well, Answer: if we start with the raw highway. on the north side of the minimum, 3-quarters of a second reac- physi- Ruble testified based all [time], great many tion and a weights cal evidence available and the many authorities and of the cases have vehicles, time of said, arbitrarily accept equal “We will forty-one hour. so, perception,” amount of time for 3- testified that the vehicles traveled one hun- *5 quarters perception, 3-quar- aof second point impact dred feet from of initial to reaction, total one ter a second of point [sic] of full In rest. an effort to calculate seconds, and a absolutely mini- speeds, [sic] the distances and took Ruble half mum, quanda- and if there’s kind of road, into consideration the surface of the during ry or confusion which some rea- friction, weights the coefficient of of occur, course, soning has to of this is vehicles, gravel/dirt the surface of the going I to extend the time a little bit. ditch, bar the surface of field and the say at least two seconds in this would braking total distance traveled before begin perceive, to circumstance to first initiated. From these measurements and get physi- second, anything going to and speed calculations he then determined the added.) cally. (Emphasis impact. at the time of testified that onwas the center line and particular question This and answer fol- that sideways, perpen- Lofton’s car was or questions regarding series of lowed a roadway impact. dicular to the at time of first lapse time between the time Johnson He further testified that Lofton’s the collision oc- saw Lofton and time approximately eighteen per hour consistently testified curred. Mr. Ruble impact. at time of three-quarters that of a second was time, quired reaction for the foot-brake testimony extremely Mr. Ruble’s is im- percep- three-quarters of a second for the light portant per of the curiam reasoning This court has tion or time. The Su- issued Court. fact previously judicial taken notice of the preme quoted concurring opinion Court of a second is con- three-quarters Sears, “Nothing by Justice to wit: could be by reaction time. Thornton v. sumed clearer from the evidence than the fact that (Tex.Civ. Campise, jumped appellant appellee front of less ref’d App.Houston writ Dist.] [14th— impact.” than seconds before the The two n.r.e.). held, Supreme Court then “These state- “I testify: on to conclusory. reviewing factu- Mr. Ruble went ments are circum- seconds in this sufficiency points, Appeals say at least two al the Court and sec- disregard begin perceive first to summarily stance to is not called on to going physically.” ondly get anything judgment its for evidence or substitute Rather, then testified Appeals Mr. Ruble jury’s. the Court of is Johnson get go- not able to son’s little as anything lane one-fourth of one ing (Seven He testified that there second. physically. arbitrarily feet was used illustration). marks purposes were no skid Another and, “Impact already happened be- hypothetical posed was then to Ruble and braking set up.” fore we had That is he was had asked reduced his did not have say, Johnson sufficient time one mile hour for ten seconds apply react and brakes between the impact, thereby traveling fifteen he first saw Lofton time and the time feet less distance than the traveled at 41 pick-up. collided with Lofton’s Mr. Ruble’s hour, would Johnson have missed clear, unequivocal testimony was and was responded, “Certainly, Lofton. Ruble by any testimony not contradicted other cup drank one more of coffee at the termi- physical evidence. evidence nal he would have been much later jumped is irrefutable that Lofton in front Although interesting too.” this makes an Johnson less than seconds before argument, it is not evidence that impact. cause of accident. The forseeability missing element is still testimony con- There was considerable the same analysis would be true cerning distance traveled at the various increased his one mile hour speeds parties, and Ruble testified 100 miles make this per hour. To kind of taken one-quarter that it would have suppositional leap, we must assume that all stopped second for Lofton to move from his constant. We factors remain cannot position position at the side road to a long assumption. make such So as Lof- to the road perpendicular and seven feet jumped ton in front Johnson less than into Johnson’s lane traffic. Based on impact, two seconds there insuffi- testimony and his calcula- Ruble’s cient that a tions, “sideways” path Lofton was speed by reduction in Johnson would have one-quarter within of a Johnson’s truck prevented the collision. Johnson still to two seconds after he started second time would not have had sufficient to take moving pick-up. Thus, effective evasive action. there testified that at 41 miles Ruble also insufficient evidence that Johnson’s *6 hour, travelling per was 60 feet proximate a of the cause accident. second, per feet second. To calculate Ru- speed ble a formula of one one-half order to find that Johnson’s used and collision, per proximate hour. a there times the miles Based on this cause calculation, evidence, speculation, must approximately Johnson was 120 that the occurred from Lofton when Lofton turned into accident would not have “but for” feet speed. There was is no evidence that at a path. some discus- There Johnson’s feet; being speed per hour sion distance how- less than 41 miles of that 180 in ever, response hypothetical in to could seen Lofton time to have this was have stop which to question approaching space Lofton sufficient within and based on time/space This opposite or at an avoid the collision. factor Johnson in the direction in ninety degree angle. will be in more detail another angle than a discussed opinion. section of the distance could be this Mr. Ruble testified situations, greater other fact but under at a of 40 Mr. Ruble testified that of this under the facts based hour, per truck miles Johnson’s hour, per 41 miles the distance speed of application quire stop 107 feet to after 120 feet. Further, at miles braking power. full would be 131 feet. During by coun hour this distance cross-examination any from source of the left There is no evidence sel Ruble testified that stop required rear was five feet into distance of Lofton’s any speed than 40 miles hour. at at less lane of traffic the time and, speculation assume pure 18-20 It would be impact, that at at Johnson would have some reduced per hour he could cleared John- miles have had space Further, sufficient time and/or that the collision unavoidable. stop which to his truck and the colli- speed, avoid if one mass alters its direction or sion. point distance im- traveled create a and, pact previously that did not exist
TIME/SPACE FACTOR point impact this is created within the factor, In the evolution of a collision “envelope” time/space between then masses, point there is a time and of the second mass cannot be a space at which the collision becomes inev- cause of inevitable collision itable. When two masses are on a Regardless collision of the two masses. of the na- they inches, may yards, course travel miles applied ture of the forces to the second they or even hundreds of miles along col- long trip mass its or short to the and, lide if no action is taken or forces point impact, long so as the mass first applied speed, to alter direction or distance creates a within the traveled, physical the collision becomes a time/space envelope, according to the laws However, certainty. and pri- mathematical physics and mathematics the collision of masses, or to collision between two reject masses is inevitable. If we points space there are time and time/space theory we must also find that speed, which direction or distance traveled always cause of can be altered and the collision avoided. collision. Court has increases, As the distance traveled or alter- party held that suddenly when drives natively space between the masses road, party’s into the other side of the and impact decreases, distance to there is no time for the party second within applied action, time which forces can be take evasive the collision would oc- speed, alter direction or distance traveled cur at party whatever the second Further, also decreases. the time driving. Hazelwood, before was Baumler v. proportionately decreases with the (1961). Tex. speed at traveling. which the masses are recognize If we this physics law of FOG mathematics, recognize we must further According testimony of all of the acknowledge every that there arises in fog heavy prior witnesses the to and at potential collision between two masses Also, the time of the accident. whether we
point in time where there is insufficient rely on the accident reconstructionist’s tes- space ap- between the masses which to timony traveling that Johnson’s truck was ply any forces that will alter di- forty-one the time of hour at rection or distance sufficiently traveled to impact, or if we consider Johnson’s testimo- avoid the collision. This will be referred to ny at the time of trial that he was “Time/Space as the Factor.” forty forty-five or his hour *7 evolutionary process, In this forces can driving deposition testimony that he was applied to either of the masses to two hour, forty-five fifty Johnson to altering: by merely avoid the collision traveling speed at a less than the (1) Speed pass fifty-five masses do not the posted speed limit of —The point impact simultaneously. speed not hour. Johnson’s say unless it was excessive excessive we (2) Direction —One or both masses do Following this line of fog. because pass point not at all. reasoning, must further find that “but we (3) Distance Traveled—One or both fog” the accident would not have stop point masses short of im- occurred. pact. words, In in find Johnson’s when the time before and ot’.or order to accident, space proximate between the masses so dimin- cause of the is a application ished find in the of forces to alter we first must that absence fog, Lofton at direction or distance will Johnson would have seen traveled collision, recognize in that there was suffi- not avoid we must such a time 204 for John- in the space highway
cient between the vehicles stalled or involved in some thereby to alter and avoid the and prior son collision was unable to move to To we get path collision. make that must out of the truck. of Johnson’s find Lofton when simply fog also Johnson saw is no There evidence that the hundred, he still one hundred or two prevented seeing any- Johnson timely from away, presence hundred feet Lofton’s three thing that would him to re- have alerted so ominous on the side road was as speed in duce his order to avoid a collision put person a on notice that to reasonable or that such reduction in would something happen. to bad was about prevented the have collision. Ruble testified that the occurred as Mr. accident If this accident occurred on clear had it, impos- Johnson described and that it was day seen Lofton’s and Johnson had driving for Lofton to down sible have been prior hundred feet several highway opposite in a direction John- impact, had no lawful Johnson would have son. his the un- duty to reduce to avoid driving action foreseeable of Lofton his PROXIMATE CAUSE highway perpendicular
vehicle John- front wheeler. comprised Proximate cause of two ele- already a rate of son was at (1) fact, (2) ments: cause in and reasonable which was fourteen miles five to foreseeability. Farley v. M.M. Cattle Ap- limit. posted speed hour less than (Tex.1975). Company, 529 755 S.W.2d pellee speculate would have us or omis- “Cause fact means that the act speed just had reduced his Johnson bringing sion was a substantial factor he avoided the mile hour would have injury no and without which about support accident. There is no evidence to have Texas Pa- harm would occurred.” & speculation. such ¶. Railway McCleery, Company cific S.W.2d (Tex.1967). The foresee- memory has no of the events Lofton v. ability Clark element established testi- leading up to the accident. (Tex.1970) as: Waggoner, S.W.2d 437 as soon he saw Lofton’s head- fied that person of ordi- Proof that the actor as a high- lights, pulled Lofton’s truck onto the nary intelligence prudence should he way in front him and that struck anticipated danger to others have testi- immediately. Lofton’s truck Ruble act, negligent and the rule created high- fied that Lofton’s entered the anticipate just require not does lane of way perpendicular to Johnson’s grow will out of that dan- injuries how less than seconds to im- traffic The test gerous situation.... and, that did not even have pact, oc- wrong what the doer believes braking to start his truck time cur; reasonably ought it is whether he fact, that full impact. Ruble testified question, foreseen that the event have braking did not occur until the vehicles event, similar would occur. or some entered the shoul- highway crossed the Waggoner, Clark Lof- found that jury der of the road. The keep proper look out and ton failed to They yield right way.
failed hold is insufficient We that there negli- were found that both acts further ele finding of either that both causes gent and were of a The driver ment of cause. findings are not of the accident. These alleged prox be a *8 vehicle whose appeal. contested found of a imate cause collision should if speed only by reason of such This is not a situation where Johnson’s liable foreseeable under reasonably head on or accident was struck Lofton’s unique cars facts and circumstances passing Lofton was where case, avoided only it could have been could in Johnson’s lane and Johnson question. fog. of the driver timely Nor but see him because was not rea- question truck was the collision Lofton’s When is this a case where foreseeable, sonably or, in the event it was jury’s finding evidence to reasonably foreseeable but could not have proximate was a cause of been avoided even if the defendant reduced the accident. We therefore reverse the his then proximate is not a judgment of the trial court and remand for cause of the accident. See v. Thornton a new trial.
Campise,
could not on his slow bus was on the Ford
car, then the part failure on the keep lookout,
bus driver to proper down,
slow or apply brakes could not
possibly be a cause Biggers collision.” v. Continental Bus RAY, al., Appellants, Lonnie Smith et System, 351, 79, 157 Tex. 298 S.W.2d (1957), 351,] reversed Tex. 303 S.W. [157 Dorothy TRUITT, Butler et (Tex.1957). 2d 359 al., Appellees. subsequent Biggers opinion, the No. 08-87-00257-CV. majority of the court said it could agree conclusion that the Ford Texas, Appeals Court of “jumped” in front of the bus less than two El Paso. collision, seconds before the might it find 16, March 1988. justification setting jury’s aside the findings. Biggers v. Sys- Appellant’s Rehearing Continental Bus Motion for tem, 351, 157 Tex. Granted Part and Overruled (1957). also April 27, See Justice Griffin’s dissent at in Part 1988. page 370. Appellee Casselman’s Motion for Rehear- Supreme
The Court ing April has further held that Granted 1988. where there is no party evidence that a has Appellee Republicbank’s Motion for an opportunity to take evasive action Rehearing April Denied 1988. turning, speeding up down, slowing person’s there is no evidence that was,
speed, whatever it is a
cause the collision. Baumler v. Hazel
wood, Consequently, considering
after all of the in this submission,
case at time of on motion for
rehearing, rehearing on second motion for Court,
and on remand from the
this court still finds there is insufficient