Stanfield v. Butler

STEPHENSON, Justice. This is an action for damages arising out of a collision between an automobile driven by Roy Stanfield and a pickup truck driven by Mark Butler. Both drivers were fatally injured, and this action is between their heirs and legal representatives. The Stan-fields brought this suit, and the Butlers filed a cross-action. Trial was by jury and judgment rendered for the Butlers. In this opinion the Stanfields will be referred to as appellants and the Butlers as appellees. All of appellants’ points of error are evidentiary with a series of “no evidence,” “insufficient evidence,” and “against the great weight and preponderance of the evidence” points as to both negligence and proximate cause concerning these four factual issues: (1) Whether Mark Butler was on the left side of the highway; [840] (2) Whether Mark Butler failed to keep a proper lookout; (3) Whether Roy Stanfield was on the left side of the highway; (4) Whether Roy Stanfield failed to keep a proper lookout. The jury answered all of the issues favorably to the Butlers. In passing upon these points of error we consider only the favorable evidence as to the “no evidence” point and the entire record as to the remaining points. In deciding whether there is evidence to support the issues, we view such evidence in its most favorable light in support of the verdict. East Texas Theaters, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.Sup., 1970). This collision occurred between 8:30 and 9:00 p. m. on the night of March 30, 1968, about two miles north of Karnes City on U. S. Highway 181. There were no passengers in either vehicle. This two-lane highway was straight at the place the collision happened with a mild incline from south to north. Appellants’ testimony was in substance as follows: Darlene Rhodes testified that she and Roy Stanfield planned to be married. On the date of this incident she met Roy about 6:30 p. m. at a barbeque at Hopson which is about seven miles north of Karnes City. About 8:30 p. m. they left the barbeque to return to Karnes City with the plan that Roy would follow her home and pick her up there. They had driven to the barbeque at different times and in separate cars. They were proceeding south on Highway 181 with Darlene driving in front of Roy about 60 yards, maintaining that distance, both about 55 miles per hour. She had her lights on bright with his lights on dim. The pickup truck involved in the collision driving normally met and passed her. She glanced in her rear-view mirror and Roy’s headlights were behind her about the same distance (60 yards) — then there was darkness — then a ball of fire in her lane which veered off into the middle of the road of the other side. Roy did not attempt to pass her at any time from the time they left the barbeque until the accident. Bernard Glassman, Jr., who was a school teacher at Karnes City High School at the time was driving south on Highway 181 and witnessed the collision from a distance. He saw headlights coming toward him which veered to his right into his lane. He then saw a fireball in his lane, and then flames., spreading to his left into the other lane which seemed to cover the road from one side to the other. He estimated he was about one fourth of a mile away when the collision occurred. Jerry Janak, a State Highway Patrolman, assisted his partner in an investigation of this collision. He observed the position of the vehicles and the highway at the place of the collision. He found a gouged mark in the southbound (Stan-field’s) lane and scraping marks in the direction of travel the vehicles took after impact. He gave his opinion that the collision occurred in the southbound lane. Charles H. Ruble, a Captain on the San Antonio Police Department and a private accident consultant for eleven years, made an investigation of this collision. He was furnished a number of photographs taken the night of the collision and the following day. He went to the scene of the accident April 3, 1968, examined it and took more pictures. He then examined the vehicles involved and took more pictures. He stated it was his opinion the point of impact was a gouge mark he found in the southbound lane. He traced the direction the automobile and pickup truck took both before and after the impact. In his opinion both vehicles were traveling at a speed between 60 to 65 miles per hour with a possibility the pickup was going 5 to 6 miles per hour faster than the automobile. In his opinion the truck overrode the automobile causing the automobile to go down in the front and make the primary contact with the pavement, resulting in the gouge mark he found in the southbound [841] lane. He found no gouge marks — no impact dig marks in the northbound lane. Appellees put on the testimony of Robert E. Bradley by deposition. He was Mark Butler’s supervisor but did not have the “slightest idea” as to how the accident occurred. The only other witness called was Mark Butler’s surviving widow who also knew nothing about the facts surrounding the collision. Appellees’ version of this collision is that Roy Stan-field was attempting to pass Darlene Rhodes and collided head-on with Mark Butler in the northbound lane of traffic (Butler’s lane). Appellees rely upon the physical evidence at the scene of the collision, appellants’ witnesses, appellants’ exhibits and six photographs offered by ap-pellees to sustain their position. Appellees seek to discredit the testimony of Bernard Glassman, Jr., by the following: Glassman did not see the taillight of the Stanfield automobile. He did not see the headlights of the oncoming car, but merely the glare in the sky. He did not give his name to the highway patrolman as a witness. He did not see Darlene Rhodes or the first automobile (according to Darlene Rhodes) which arrived at the scene of the collision. Appellees seek to discredit the testimony of Darlene Rhodes by the following: Darlene Rhodes testified by deposition that Roy Stanfield was driving along about 60 feet behind her and then changed the distance to 60 yards at the time she signed the deposition. Darlene Rhodes testified that the pickup truck, which collided with Roy Stanfield’s automobile, was on its right-hand side of the highway when it passed her; and she noticed nothing unusual about it when it passed. Appellees seek to discredit the testimony of Jerry Janak by the following: He was merely assisting in the investigation and had no report from which to refresh his memory. He found the pickup truck on fire in the northbound lane facing west when he arrived. He found the automobile with no evidence of burning on the west paved shoulder facing in a northerly direction and with the front end about 30 to 40 feet south of the pickup. He admitted he did not. know which vehicle made the gouge marks in the southbound lane and that they could have been made after the cars collided and swung around. He admitted he did not know the Stanfield car was following closely behind the Rhodes car and that the Butler car passed the Rhodes car just before the collision. Appellees seek to discredit the testimony of Charles H. Ruble by the following: Ruble was hired several days after the collision to attempt to reconstruct the accident. Ruble admitted he did not contact any of the witnesses and did not know that Stanfield was following closely behind the Darlene Rhodes car immediately before the collision. He testified the white area appearing in several exhibits just south of where the pickup truck came to rest was made by the battery acid from the automobile; that the battery was smashed to bits upon impact; that he found no debris or battery acid at the gouge marks. Appellees rely primarily upon two deductions from the physical evidence. First, the presence of the battery acid in the northbound lane as proof that the collision occurred at that point where the battery was smashed. Second, with each vehicle traveling 60 miles per hour and closing at the rate of 170 feet per second, if Roy Stanfield was 60 yards behind the Rhodes car, it would have been physically impossible for Mark Butler to have passed the Rhodes car in his own lane and then turn into the Stanfield car in one second. Appellants’ “no evidence” points are overruled. There is some physical evidence that supports the findings of the jury. However, we find all of the jury findings under attack to be contrary to the weight and preponderance of the evidence. Even though proper lookout issues were submitted as to both Stanfield and Butler, the real battle in this case was fought over [842] the lane of traffic in which the collision occurred. On the one hand, we have the testimony of Darlene Rhodes, Bernard Glassman, Jr., Jerry Janak and Charles H. Ruble all testifying that this collision occurred in the southbound lane. On the other hand, we have the evidence that the Stanfield automobile battery was smashed to bits and battery acid was in the northbound lane. There is no direct evidence that the battery acid in the northbound lane came from the Stanfield automobile. No inquiry was made of any witness as to what happened to the pickup truck battery. From our study of the pictures of the pickup truck in evidence in this case, we are convinced its battery was also smashed to bits. According to the testimony of Charles Ruble, in reconstructing this collision, the Stanfield automobile did not get into the northbound lane at any time. The direction the pickup truck took after the impact was over the spot where the battery acid was found. Further, no gouge mark was found in the northbound lane; and extensive asphalt material was found in the rim of the Stan-field automobile, demonstrating the fact that a gouge mark was made in this collision. Ruble also testified that he found other light areas that could also represent battery acid which could account for the Stanfield automobile battery acid. We have concluded the findings of the jury are clearly wrong and manifestly unjust. Reversed and remanded.