Lockett v. Redi-Fuel Transport, Inc.

RALEIGH BROWN, Justice. This wrongful death case is the result of an automobile-truck collision. Bert Lock-ett, the surviving husband, and Carroll Lockett, the sole child of Zola H. Lockett, sued Redi-Fuel Transports, Inc. and its driver, Guy W. Steiwig, for damages for the death of Zola Lockett. A take nothing judgment was rendered following a jury verdict. Plaintiffs appeal. We affirm. The jury determined: Guy W. Steiwig (1) did not fail to keep a proper lookout; (2) was not traveling at a greater rate of speed than a person using ordinary care; (3) did not fail to make proper application of his brakes; (4) did not fail to turn to his left as a person using ordinary care; (5) was driving while under the influence of liquor; (6) such driving under the influence of liquor was a proximate cause of the occurrence in question; and (7) his driving under the influence of liquor was a heedless and reckless disregard of the rights of others. The jury also found: Mrs. Lockett (1) failed to keep a proper lookout; (2) such failure was a proximate cause of the occurrence; (3) failed to yield the right-of-way; and (4) such failure was a proximate cause of the occurrence. Steiwig’s percentage of negligence causing the occurrence was 25% and Mrs. Lockett’s percentage was 75% according to the jury. Appellants contend the court erred in failing to set aside the lookout, comparative negligence and the right-of-way findings as to the deceased driver because there is no evidence and factually insufficient evidence to support such findings. Zola Lockett was killed on July 18, 1975 in an automobile-truck collision occurring a few feet outside the city limits of Snyder, Texas near the intersection of United States Highway 84 and Huffman Avenue. A truck stop was located north and west of the intersection. The Lockett vehicle being driven by Zola Lockett apparently exited the truck stop on the north and drove onto the east-west road just north of Huffman Avenue. The Lockett vehicle stopped at the stop sign. The Lockett vehicle then pulled from the stop sign, turning south onto U.S. 84 and began to “angle” southeast towards the intersection of Huffman Avenue and U.S. 84. Apparently, the Locketts intended to make a U-turn and head north toward Lubbock, their intended destination. The speed of the Lockett vehicle was described only as “gradual”. As the Lockett vehicle neared the U-turn point, it angled into the left-hand lane and approached the left-turn lane. The transport truck, driven by the defendant truck driver, being in the left lane hit the automobile. The front of the transport truck struck the Lockett vehicle at approximately the driver’s door. The point of impact was six feet into the left-hand lane and twenty-eight feet from the south end of the left-turn median. There were no skid marks or indications of swerving by either vehicle before impact. Steiwig first saw the Lockett vehicle just as it pulled away from the stop sign and edged into the right-hand lane of U.S. 84. He described the Lockett vehicle as “angling” across at a gradual speed. Immediately before impact, Steiwig testified he applied his brakes and blew his horn. After impact, the truck continued in a south, southeasterly direction, hit the left-turn median for north-bound traffic to turn west, and stopped 225 feet from the point of impact in the northbound lane of U.S. 84. The truck jackknifed to a stop. The Lock-ett vehicle was knocked to the south, southwest and came to rest some 696 feet from the point of impact. In Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), the court said: “When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable' light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance [904] Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is no more than a scintilla of evidence. Calvert, No Evidence' and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (I960).” In Lynch v. Ricketts, 158 Tex. 487, 314 S.W .2d 273 (1958), it is said: “In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, ,if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.” We find some evidence of probative force in the record which supports the jury’s answers to the lookout, right-of-way and comparative negligence findings on the deceased driver. The testimony of Steiwig together with the testimony of Holloway, an eyewitness who testified the automobile pulled out on the highway in front of the truck, constitutes some evidence on these issues. Also, we are of the opinion the circumstantial evidence would support the findings. We have considered the entire record and hold the evidence is not factually insufficient to support the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellants contend the court erred in failing to grant them a new trial on the speed finding, the lookout finding and the comparative negligence finding as to the truck driver because the findings are supported by factually insufficient evidence and are against the weight of the evidence. We have considered the entire record and hold such findings are not factually insufficient and are not against the weight of the evidence. In re King’s Estate, supra. Appellants also contend the court erred in admitting the officer’s testimony that the truck driver’s intoxication was not the cause of the accident. Although we agree the admission of such testimony was error and the testimony is calculated to show that the officer did not believe intoxication caused the accident, we conclude from an examination of the entire record that such error was harmless. The objectionable testimony of Trooper Clark given on cross-examination was: “Q . What are the elements as you understand them of the offense of involuntary manslaughter? A All right, sir. That person was operating the motor vehicle or vehicle— I’m dealing with motor vehicles— and that person was using the public highway and was driving that—the person—was doing the driving was under the influence of alcohol that caused the death of someone else. Q So a necessary element and the last element of that offense would be [905] that the intoxicated state of a driver actually caused the death of another person? A Yes, sir. Q And if that element were not there, you couldn’t make the offense, could you? A (NO RESPONSE) Q Couldn’t make it stand up? A Sir, I don’t think so. Q All right.” The vice of such testimony is the opinion of the officer that the intoxication was not the cause of the accident. Significantly, plaintiff’s attorney on redirect examination of Trooper Clark inquired: “Q In your determination as to what charges to file, you were dealing with a criminal standard of proof, weren’t you, Mr. Clark? A Yes, sir. Q Do you understand that the criminal standard of proof is proof beyond a reasonable doubt? A Yes, sir. Q That is a different standard of proof from the civil standard of proof, isn’t it? A Yes, sir. Q You weren’t doing any investigation for a civil case, were you? A No, sir. Q So actually you didn’t try to make any determination as to what was the causation, what happened to cause the accident from a civil standpoint, did you, Mr. Clark? A No, sir.” Appellants contend the admission of Clark’s testimony affected the jury’s determination of the causation of the accident. Contrary to Clark’s objectionable testimony, the jury determined Steiwig, the truck driver, was driving his vehicle while under the influence of intoxicating liquor and such intoxication was a proximate cause of the occurrence. The erroneously admitted opinion testimony of Trooper Clark was harmless because the jury expressly found in favor of appellants on the tendered issues to which the testimony was applicable. Rule 434, T.R.C.P.; Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 (1956); Womacks v. Horne, 300 S.W.2d 765 (Tex.Civ.App.— Waco 1957, no writ); Rowan & Hope v. Valadez, 258 S.W.2d 395 (Tex.Civ.App.— San Antonio 1953, writ ref. n. r. e.); Alexander v. Appell Drilling Co., 290 S.W.2d 377 (Tex.Civ.App. — Waco 1956, writ ref. n. r. e.). Examination of the entire record supports the jury’s findings on the comparative negligence issue which asked the jury to find the percentage of “negligence that caused the occurrence.” Holloway, an eyewitness, testified that defendant was holding the truck as straight as any man could and trying to miss the automobile. He further testified that the deceased driver was pulling out on the highway in front of the truck. Steiwig testified he pulled over to the left as far as possible, sounded his airhorn, applied his brakes and could have avoided the accident if plaintiff had not entered the left lane. The jury resolved in favor of Steiwig the lookout, speed, brakes and turn-left issues. Such findings absolve Steiwig from negligent operation of the truck. The jury found Mrs. Lockett failed to keep a proper lookout and failed to yield the right-of-way, such failures being proximate causes of the occurrence. Additionally, the jury determined Steiwig drove his vehicle in a heedless and reckless disregard of the rights of others. Having made such findings and even though Clark’s opinion suggested that the intoxication was not a cause of the occurrence, the jury found Steiwig’s percentage of negligence causing the occurrence was 25% and Mrs. Lockett’s percentage was 75%. We hold under the circumstances of the entire record the error is not such as caused [906] the jury to return a verdict which it would not have returned had it not occurred. We do not agree “that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Rule 434, T.R.C.P. The judgment is affirmed.