Texas Brine Corp. v. Lofton

JUNELL, SEARS, Before MURPHY and JJ.

OPINION

SEARS, Justice. Johnson,

Appellant Wayne Morris scope while the course and of his em ployment Appellant with Texas Brine Cor poration, was involved a vehicular colli Appellee. Appellee brought sion with suit against Appellants personal injuries $113,500.00. and was awarded This 35%, amount percent- was reduced 692

age comparative of negligence that the F.M. 2004 Appellee was, intersection. jury Appellee. attributed to The central therefore, crossing Johnson’s lane of traf- issue is whether or not can be a fic 300 feet designated west of the area proximate cause without foreseeability. crossing. such a explanation There is no judgment We hold it cannot. The is re- Appellee’s actions. versed and remanded. The case was submitted to jury and it evening accident, On the of the found: weather foggy conditions were with some (1) driving Johnson was greater at a rate patches fog. severe Johnson was travel- person using than a ordinary in the eastbound lane of F.M. driven, care would have and this was which is a two-lane posted road with a proximate collision; cause of the speed limit of per Appellee 55 miles hour. (2) Johnson crossed the center line of the was northbound on F.M. which dead- highway immediately prior to the col- ends Appellee’s on F.M. 2917. It was in- lision but this was not a tention to turn left and enter the west- collision; cause of the and bound lane of F.M. 2917. (3) Appellee negligent was in failing to Appellee testified that he memory has no failing lookout and in subsequent of the stopping events at the yield right way, and both stop sign controlling entry onto F.M. 2917. were causes of the colli- waking His next clear up recollection was sion. in hospital. pre-trial in a Appellants allege single in deposition he swore that his last clear evidence, error that there was no or alter- memory getting pickup, was into his and evidence, natively insufficient memory stop sign he had no of the finding entry of his onto F.M. 2917. cause. driving Johnson testified that he was comprised Proximate cause is of two ele- eighteen-wheeler eastbound (1) (2) ments: cause in fact and reasonable per 45-50 miles hour. Several hundred Co., foreseeability. Farley v. M.M. Cattle reaching feet before F.M. 2004 there is a (Tex.1975). in “Cause fact right turn lane for eastbound traffic situ- means that the act or omission was a sub- ated on the south side of F.M. 2917. John- bringing stantial factor in injury about the Appellee’s son right first saw vehicle to his and without no harm would have facing in this turn lane and west rather Railway occurred.” Texas & Pacific east, facing wrong than i.e. direction. (Tex.1967). McCleery, 418 S.W.2d approached, Appellee’s As Johnson element was established northerly darted in front of Johnson in a Clark sideways direction was Johnson’s (Tex.1970) 439-40 as: applied lane of traffic. Johnson his brakes proof that the actor as a of ordi- turned left to avoid the collision. The nary intelligence prudence should portion left front of Johnson’s vehicle anticipated danger have to others Appel- struck the middle of the left side of act, created and the rule lee’s vehicle and drove it off the north side require anticipate just does not that he of the road. injuries grow how will out of that dan- An accident reconstructionist testified gerous The test situation.... investigation that his revealed that immedi- wrongdoer what the believed would oc- ately prior impact traveling Johnson was cur; ought reasonably it is whether he easterly per an direction at miles question, have foreseen that the event Appellee hour. in a norther- event, or some similar would occur. ly per direction at 15-20 miles hour. The impact Appellants occurred at the center line of F.M. contend that neither element approximately 300 feet cause established in this west appellate argued recognize if John- courts Appellee at trial that case. authority one mile to set aside ver had reduced his are without son facts, prior conflicting particular miles to the scene of the upon hour a few dicts accident, have oc- the accident would not ly questions on dam evidently Appel- Porter, curred. The believed age Liberty suits. Film Lines v. could as argument; we do not. It lee’s argued that if increased

easily be Johnson recognize that the facts must be further speed per his one mile hour he would have clear, cir undisputed, ample and and the passed point impact prior the to the time justify exceptional cumstances must be to Appellee darted across the road. However, the essential such action. Id. undisputed. facts of this case are Appellee Biggers cites v. Continental Systems, Bus Appellee fog, contends that the wet road (1957), speed proposition his conditions, hour, evening heavily the loaded cause. The case was previous passing of other truck and distinguishable. The defendant bus driv- given the same cars should have Johnson public driving heavily er on a traveled was degree imparted to the (60- speed highway at an excessive rate of agree. Biggers. defendant in We do not hour). per 65 miles He first observed the string of three automobiles involved testimony there no While was eight-tenths collision he was still of a when traveling at an “excessive” Johnson was that he away mile from them. He testified find, recog speed, jury nor did the so we string in the knew the second car was presence Appellee facing nize that the traveling greater speed at a rate of than wrong him on the side of the road and third, presenting the first and thus to the patches fog provide could the basis possibility man the mind of reasonable finding that John jury “some” evidence might pull that the second or third car into traveling son was at an “excessive” rate of try pass its the other left-hand lane Further, speed under those conditions. Biggers, cars. 303 S.W.2d at 366. The provide this could “some” evidence Biggers Court noted that the defendant speed It would be cause. ample thus had time and distance which say unrealistic to Johnson could not speed to reduce his to a reasonable rate any foresee that a car circumstances (40-45 hour) reaching per miles before may, stopped wrong side of the road on point speed his a situa- where would create path, warning, dart across without danger if tion of imminent one of the cars stopping, make decelera speed would should enter his lane of traffic. The Court more turning to avoid a collision tion or per- held that under these circumstances Appel overrule difficult. We therefore ordinary intelligence should reason- son of of error. “no evidence” lants’ danger others ably anticipated have inescapable conclusion is any if speed created his excessive one reasonably could not have Johnson approaching should enter automobiles Appellee would cross foreseen that the reason. The his traffic lane whatever place him at such a road in front of found that the Biggers Court opportunity Johnson no time so as to allow that if the reasonably have concluded collision. Johnson was travel- to avoid the miles had been reduced to 40-45 of the bus per hour 15 miles below first per the bus driver was hour when According the acci- posted speed limit. danger in the with the inherent confronted reconstructionist, the two vehicles dent situation, have the' collision would never apart only 150-180 feet when Johnson were upheld Thus the Court occurred. Appellee. At that moment first saw the a rate finding that the bus already moving into hour, Appellee’s truck was per of 55 miles excess mini- Johnson’s proba- Johnson’s lane of-traffic. excessive and a that this reaction, perception and mechanical mum ble cause of the collision. (or deficiency time) lag seconds, took 2.5 headlights he them saw move out across which at 41 miles hour highway. carried him 150 the feet Appellee; closer to braking distance The driving found that Johnson was would required have another 107 feet at a greater the truck at a rate of than a minimum. Considering the fact that the person using ordinary care would have Appellee was 300 feet from the nearest finding unchallenged by driven. This intersection and Johnson had never seen a appellant. Appellant challenges only the parked along that side of that road legal finding cause on both during many travels, all his he could not insufficiency grounds. majori- factual reasonably have particular foreseen this ty of this court holds that there is some danger, it, nor did he create nor could he evidence of that the but Therefore, have avoided it. we find the evidence on cause is insufficient. factually evidence is support insufficient to It seems to me majority say- that the is jury finding that Johnson’s was a ing that support evidence is insufficient to proximate Further, cause of the collision. finding proximate of cause unless the finding by jury against that the is so the truck particular driver could foresee the weight preponderance and of the evidence complained accident my opinion of. In that manifestly wrong as to be unjust. and is not the law. Texas courts have Appellants’ insufficiency point sustain of recognized proximate cause does not Appellants’ error. recovery claim for require negligent party that a foresee the repair Appel- costs of to its vehicle due to negligence may exact manner in which his negligence necessarily lee’s will have to be injury result another. v. by determined trial. new 351, System, Continental Bus 157 Tex. (1957); Flores, 303 S.W.2d 359 Sullivan judgment of the trial court is re- 55, (1939); 134 Tex. 132 S.W.2d 110 Carey versed and remanded for a trial. new 31, Distributing Corp., v. Pure 133 Tex. (1939). 124 S.W.2d 847 JUNELL, Justice, dissenting. I there ample think evidence that the I respectfully dissent. I believe the evi- proxi- truck was a support dence is sufficient to the find- I, question. mate cause of the collision in that the the Brine Texas Cor- therefore, respectfully my note dissent. poration Wayne truck driven Morris Johnson was a cause of the colli- ON FOR OPINION MOTION question. sion The accident occurred at REHEARING night conditions, extremely foggy MURPHY, Justice. reducing visibility requiring pre- and extra Rehearing, appellee In his Motion for cautions. There the was evidence majority that the used the contends incor- damp, creating longer road was thus “insufficiency rect test for an of the evi- stopping eigh- distance for the Texas Brine error, dence” failed to consider the which, load, teen-wheel truck with its “foreseeability” proper test for the element 70,000 weighed pounds. There was evi- cause, appellant held that travelling dence that the truck particular danger driver must foresee the between 40 and 50 miles hour. made, complaint and erred in which Although the truck driver testified he did holding jury’s finding the the not see the Lofton car until he was within appellant’s speed cause of it, an six feet of there was evidence from against great collision weight the the justified the accident reconstructionist that preponderance and of the evidence. believing truck saw Lof- driver supplemental he 150 and 180 feet In ton when was between brief away. Rehearing appellee testified-he first saw Lof- his Motion for cites us Johnson Supreme Dyson to the recent case of headlights ton’s and as soon as he saw Court Corporation, ing weight preponderance v. The 692 S.W.2d 456 of the evi- Olin (Tex.1985),particularly language dence, we are mindful of the rule that concurring opinion by Justice Robertson. requires all of the us consider evidence opinion e.q., In that Justice Robertson case, in the and set aside the verdict states: remand for a trial if conclude that new we question against great weight

“The is whether we will contin- so verdict is prior interpretation ue to to a adhere to be preponderance evidence as V, article section 6 has Alviar, allowed manifestly unjust. Garza v. appellate usurp jury’s courts to func- (Tex.1965). The S.W.2d tion.” Id. at 514. weighed supporting the verdict is to be case, along in the in- with other evidence Indeed, Supreme has Court substitut cluding contrary that which is ver- findings its ed conclusions for that of a Estate, King’s dict. In re 150 Tex. on the issue of cause. See (1951). Although spe- 244 S.W.2d 660 Missouri Railroad v. American Pacific cifically original opinion, stated in our Statesman, (Tex.1977); 552 S.W.2d 99 applied. above tests were utilized and (Tex. Clark v. 452 S.W.2d 437 1970); Genell, Flynn, Inc. v. test for the We understand (1962); Lighting Houston “foreseeability” element of Brooks, Company & Power Johnson, cause to be whether ordinary intelligence prudence, of In v. System, danger Continental Bus anticipated should have the to oth 351, 359, (1957), 157 Tex. 303 S.W.2d 369 operation by ers created his of the truck Supreme the position Court stated its re- the he was at the time and garding by the action to be taken the then place question. in Granted that the rule of Appeals ruling Courts Civil in on the require he an does not that insufficiency points, quot- issue of factual grow ticipate just injuries might the how Builders, Inc., from Barker v. Coastal conduct, the out of his nevertheless test is 540, 798, (1954) 153 Tex. 271 S.W.2d 812 as ought reasonably to fore “whether he have follows: question, in seen that the event or some light analysis “If the of our of the event, similar would occur.” Clark v. evidence and its mature consideration 437, (Tex.1970). 452 440 S.W.2d Appeals

thereof the Court of Civil should recognize also that Johnson was not contrary conclude that the verdict is required anticipate negligent conduct on to great weight preponderance to the Allen, part the of Lofton. 154 DeWinne evidence, hesitancy the it should no have 95, (1955); 316, Black Tex. 277 S.W.2d 98 reversing judgment the remand- Cooner, (Tex.Civ. 641 burn v. 509 S.W.2d ing the case for If retrial. it should 1974, writ); Day App. no — Amarillo conclusion, opposite reach the it should McFarland, (Tex.Civ.App. 474 946 S.W.2d affirm. In either event we have what n.r.e.); 1971, —Tyler writ ref’d Holland v. question said on the law of ‘no evidence’ Collins, (Tex.Civ.App.— impediment should no and no source be n.r.e.). 1970, Amarillo writ ref’d On the to the embarrassment Court Civil eyes other hand Johnson could not close Appeals’ proper of the own evaluation plainly visible and which to question on the fact of ‘insuffi- by would have been observed cient that court and evidence’ because similarly situated. ordinary prudence final that court alone is made the arbiter Ricketts, 487, 314 Lynch v. question.” of that 273, (1958). 275 S.W.2d knowledge, position To our the through traveling on a Johnson was Supreme changed. has not Court Lofton, right-of-way. highway and had the in his on the shoulder jury findings chal who was Where are approximately 300 feet from lenged being contrary highway as to the overwhelm- the 696 intersection, 1971, duty n.r.e.); nearest had the to writ ref’d Fair Farnie v.

yield the right-of-way being to the vehicle Store, (Tex.Civ.App.— S.W.2d 304 752 operated by acknowledge Johnson. We 1957, n.r.e.). Beaumont writ ref’d duty that Lofton’s yield right-of-way Rehearing for Motion overruled. absolute, to Johnson’s truck was not but Muse, relative. McWilliams v. Tex. SEARS, Justice, concurring. 109, 643, (1957). 300 S.W.2d overruling I in the concur of the Motion found that Lofton failed however, Rehearing; For I find no evi- lookout which was a cause of ap- jury finding dence to occurrence. The also found that failing yield pellant Lofton was Johnson’s right-of-way accident, which was a and I render cause of would very moment occurrence. Until the judgment appellants. for when it became Lofton would evident that Rehearing On appellee Motion yield right-of-way to the vehicle majority opinion has indicated that being Johnson, driven was not Johnson appellant’s found sufficient evidence that required anticipate negligent or unlaw awas “cause in fact” but failed ful part conduct on the Lofton. DeW regarding find sufficient evidence “foresee- Allen, inne v. ability.” majority does not appellant’s speed find was a cause It has been the deter rule accident, any fact of the nor do we find mining prudent ordinarily an what man foreseeability that satisfy will the test circumstances, would given do under proximate cause. time available for realization reaction testimony relies Appellee heavily on the is of importance. extreme Barnes v. Gen reconstructionist, of the accident and it was (Tex. eral Corp., Motors testimony that established App. n.r.e.); ref’d Antonio writ — San forty-one speed per miles hour at at Glaze, 357, Caughman v. 412 S.W.2d 361 speed posted time of the accident. The 1967, (Tex.Civ.App. Antonio writ — San fifty-five hour; per limit miles there- was n.r.e.). ref’d fore, appellant driving speed was twen- Again recognizing governing the rules speed ty-five percent posted less than the our points, review of insufficient evidence concerning testimony limit. There was and mindful of in the rule enunciated Lib appel- fog, and the could heavy find Porter, erty Lines, Inc., Film v. driving at an negligent lant excessive 49, (1941) 146 S.W.2d 982 and Enloe v. speed these under conditions. Neverthe- (Tex.1967), 422 Barfield, S.W.2d 905 less, case, speed the facts of this under after another of the record careful review appellant proximate was not a whole, of the time consideration appellee The found was the collision. and re available to Johnson for realization negligent failing look- action, opinion we are still of that the failing yield right-of-way, out and upon evidence the ele extremely weak proximate and found both to be causes upon ment of the ele Whether we consider the tes- the accident. ment of “cause in Kehlenbrink v. fact.” appellant timony or the accident recon- Pickens, (Tex.App. 656 S.W.2d 668 — Waco structionist, appellee it is clear that when 1983, n.r.e.); writ ref’d v. Herr Golleher highway there not started across was era, (Texas App. 651 S.W.2d 329 — Amarillo space appellant time or sufficient 1983, writ); Gentry, no 520 Hailes v. collision, inten- regardless of the avoid the 1975, Paso (Tex.Civ.App. 555 S.W.2d — El fog at the sity of the time of the collision. Cooner, writ); no 509 S.W.2d Blackburn v. having no recollection 1974, writ); Appellee, while no (Tex.Civ.App. 641 — Amarillo accident, leading up to the Lines, Bergeron, the events Freight Central Inc. speed of us believe that the (Tex.Civ.App. would have — Beaumont 697 appellant inescapable I was cause of therefore arrive at the conclu- regardless accident sion that “but for” the acts at which words, appellee, the collision would not have oc- appellant traveling. In other was Nothing appellant curred. did appellee contends that because failed to do was a cause of moving, vehicle was it awas collision. through- Appellee, cause of the accident.

out the of wit- direct cross-examination by its Each case should be controlled particularly during argument nesses and unique own facts and circumstances. jury, position appellant took the that if Atlantic Tea Co. v. Ev Great & Pacific ans, speed “just per (1943); had mile reduced one 175 249 S.W.2d Lines, Bergeron, route, Freight Central Inc. v. any point along hour” at he (Tex.Civ.App. The 117 would have avoided collision. S.W.2d — Beaumont n.r.e.). evidently by ref’d The of a impressed argument. was writ driver alleged prox just easily argued I am not. It could as whose be be imate cause should be found liable rea appellant if had increased his speed only if the accident in hour, son such cup one mile had one of coffee reasonably foreseeable, question more, less, was un cup or one he would not have circumstances, unique der these facts and particular spot been at that in the road at and could have been avoided but question. the time in so as See Clark question. of the driver at appellee pulled appellant’s path into (Tex.1970). such a in time appellant question In the event the accident in collision, speed not avoid the cannot be a foreseeable, or, reasonably in the event proximate cause. reasonably it was foreseeable but could not “cause fact” or “but for” test to even if the driver re have been avoided applied prong be to determine the first speed, proxi duced his then is not a cause, the definition of mate cause of the accident. This court produced case, only in this can Campise, Thornton v. applied to appellee. be the acts of Those (Tex.Civ.App. [14th Dist.] — Houston acts were as follows: n.r.e.), has held that in order for writ ref’d 1) Appellee highway failed to enter the complained the act of to be a appellant on which cause, the situation must be such that the controlled intersection for such en- have occurred for” collision would not “but try. said act. To hold a driver to strict re 2) Appellee approximately travelled quirement that he “foresee” each and ev appellant

feet towards on shoulder ery possible accident-threatening occur (the appellant’s rence, side of the road speed or to make a road). wrong side of the moving merely because a vehicle is for” that movement the accident “but 3) Appellee stopped parked then for occurred, might logical not have is not time, period an undetermined fac- justice. the best interest of So as oncoming traffic. chose, reason, appellee for whatever 4) Appellee appellant waited until path appellant’s dart into the truck at possibly not avoid the accident and point such a in time so as to make the unexplained ap- then for some reason unavoidable, collision inevitable and I can pellee accelerated his vehicle into merely appellant’s not that hold because path truck. speed, at some moving vehicle was that 5) Appellee look- failed speed was a cause of the acci out. Biggers opinion1 dent. The and all cases 6) yield right-of-way. subsequent it or to it have a Appellee failed to reviewed (1950). Biggers Bus 1. v. Continental System, opinions common element woven into the bus less than two seconds before the colli- courts, reasoning sion, and that might it find justification setting common element is time: Time to take aside jury’s findings. 303 S.W.2d at All dealing evasive action. those cases 363. See also Justice Griffin’s dissent at negligence with the of a driver who collides 370. with wrong another vehicle is in case, nothing clearer In this could be lane have found to be appel- from the evidence than the fact that negligent cause only when the acts of the “jumped” appellant less than lee front of wrong driver in the lane occurred at such a that impact. It follows two seconds before they in time that per- were seen or appellant could not foresee ceived with remaining sufficient time be- appellee anymore than he could acts of impact fore the for the other driver to appellee. Appellant avoid the collisionwith “foresee” a collision and therefore reduce speed twenty-five percent had reduced his speed or take other evasive action. limit, is posted speed and there below the held even court has supreme The simply no evidence that greater when a driver rate proximate cause of this collision. ordinary pru- than a my foregoing, it is further Based on the dence would have under the traveled exist- opinion appellant should recover ing circumstances, that excessive negli- due to the damages appellee from necessarily cause of a sub- appellee being only proxi- gent acts of sequent Hazelwood, collision. Baumler v. mate causes of the collision. The court also found Baumler that al-

though there existed “some evidence of fore- Justice, JUNELL, dissenting. seeability from cir- itself my original reasons set forth For the cumstances,” there “no ease, I still dis- dissenting opinion in this was, speed, it Baumler’s whatever my opinions of both of agree with proximate cause of the accident” The rehearing. There- colleagues on motion case has less evidence of actual Baumler fore, respectfully dissent. I still bar; nonetheless, speed than the case speculation juries pure resorted to both or not the accident

determine whether the speed would have occurred “but for” speculation to appellant. We cannot allow great this state. jurisprudence dictate the recognized signifi court “speed cance of the ratio between WATKINS, Appellant, Nolan proximate cause” and “time to avoid” when they said: “We think there can be no doubt if the Ford crossed over into the traf Texas, Appellee. The STATE of fic lane in such a short time the bus driver No. 09 82 111 CR. brakes, put could not on his or slow his car, speed before the bus was on the Ford Texas, Appeals Court of part

then the failure on the of the bus Beaumont. lookout, driver to to slow Sept. 1985. down, apply possibly brakes could be cause of the Big collision.” gers v. Continental Bus System, 157 Tex. In the subse

quent opinion in Biggers, majority agree

court said that if it pre with the mise “jumped” that the Ford in front of the

Case Details

Case Name: Texas Brine Corp. v. Lofton

Court Name: Court of Appeals of Texas

Date Published: Apr 11, 1985

Citation: 698 S.W.2d 691

Docket Number: C14-83-480-CV

Court Abbreviation: Tex. App.