RT Herrin Petroleum Transport Co. v. Proctor

Texas Supreme Court

RT Herrin Petroleum Transport Co. v. Proctor

338 S.W.2d 422, 161 Tex. 222, 3 Tex. Sup. Ct. J. 441, 1960 Tex. LEXIS 543

CourtTexas Supreme Court

DecidedJuly 13, 1960

DocketA-7304

StatusPublished

Cited by65 cases

This text of 338 S.W.2d 422 (RT Herrin Petroleum Transport Co. v. Proctor) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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RT Herrin Petroleum Transport Co. v. Proctor, 338 S.W.2d 422, 161 Tex. 222, 3 Tex. Sup. Ct. J. 441, 1960 Tex. LEXIS 543 (Tex. 1960).

Pincite

Opinions

Mr. Justice Norvell

delivered the opinion of the court.

This action arose from a truck-automobile collision which took place on State Highway No. 70 about four miles south of Sweetwater, Texas at approximately 7:00 o’clock on the evening [224]*224of August 27, 1957. Orval H. Proctor and a woman companion were riding in the automobile. Both were killed. Mrs. Laura Proctor, the mother of Orval H. Proctor, a single man with no children, brought this action for wrongful death under Article 4675, Vernon’s Ann. Texas Stats. As defendants, she named Curtis Cleven Barron, the driver of the truck, and his employer, R. T. Herrin Petroleum Transport Company, the owner of the truck. Judgment in the trial court was for the defendants upon jury findings that Orval H. Proctor was guilty of contributory negligence. The Court of Civil Appeals reversed the judgment and remanded the cause for another trial upon two holdings: First, the trial court erred in failing to submit plaintiff’s special requested issue No. 1 which contained several questions embracing the theory of discovered peril, and secondly, the trial court erred in admitting testimony concerning a partially filled whiskey bottle handed to the Sheriff of Nolan County while he was at the scene of the collision, aiding in the investigation of the accident. Proctor v. R. T. Herrin Petroleum Transport Co., 322 S.W. 2d 42.

Application for writs of error were filed by both appellant and appellees in the Court of Civil Appeals and were granted by this Court. As the parties occupy dual positions in this Court, we will use the trial court designations or refer to them by name.

In her application for writ of error, plaintiff contends that the jury’s answers to certain issues submitted to the jury, when considered in connection with the undisputed facts disclosed by the record, entitle her to judgment under the discovered peril theory despite the jury’s finding that Proctor was contributorily negligent.

In our opinion the present record does not present a case of discovered peril. This holding disposes of plaintiff’s assertion, above stated, that she was entitled to judgment upon the jury’s answers to the issues submitted to it as well as her contention that the trial court erred in refusing to submit her special Issue No. 1 embracing the theory of discovered peril. However, the holding of the Court of Civil Appeals, upon the evidence point involving the whiskey bottle was correct and necessitates an affirmance of the judgment of the Court of Civil Appeals. Upon another trial the district court will be governed by this opinion.

At the outset of our discussion of the case, it should be pointed out that from the plaintiff’s standpoint, this case was tried upon alternative and somewhat conflicting theories, a [225]*225situation which would unlikely develop in any suit except a death case or one in which neither the driver nor an occupant of one of the colliding vehicles was able to testify. The conflict of theory lies in the assertion upon the negligence — contributory negligence feature of the case that the driver of the truck was propelling his vehicle upon the highway at a highly dangerous and excessive rate of speed, while plaintiff’s decedent was free from negligence contributing to the collision. On the other hand, it is contended upon the discovered peril feature of the case that the truck driver’s speed was such that he had adequate time to prevent the collision by the means at his disposal despite the decedent’s negligence. In the usual case where both the drivers of the colliding vehicles testify, the conflict of theory disclosed by the present record does not appear as the usual thing, but we would have a case of excessive speed by the defendant (from the standpoint of the plaintiff’s testimony) or the opposite, that is, moderate speed allowing time for action on the part of the defendant to prevent the collision. In other words, the parties by their own testimony would generally be committed to consistent rather than conflicting theories. The death of Proctor and his companion worked a change in the usual situation.

It should also be borne in mind that as this case will have to be retried because of the admission of improper testimony, what we say concerning the applicability of the doctrine of discovered peril is based upon the record now before us and is for the guidance of the trial court in the event (which at the present time seems probable) that the testimony upon a retrial will be substantially the same as that disclosed by the present record. However, different or additional evidence may call for the application of different rules of law.

The discovered peril contentions raise a comparatively narrow issue. In Ford v. Panhandle & Santa Fe Ry Co., 151 Texas 538, 252 S.W. 2d 561 this Court said:

“The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. White v. White, 141 Texas 328, 172 S.W. 2d 295; Stevens v. Karr, 119 Texas 479, 33 S.W. 2d 725; Fitz-Gerald v. Hull, Texas Sup., 237 S.W. 2d 256.”

[226]*226We are here concerned with permissible “reasonable inferences” under the rule above stated.

In the language of the special issues employed in submitting discovered peril cases in Texas, we say that one who discovers another in a perilous position and fails to use the means at his disposal to prevent injury is liable for the injuries resulting from such failure. Upon discovery of peril, a new and immediate duty arises to prevent injury and it is the breach of that duty which gives rise to liability.

Plaintiff’s requested special issue No. 1 consisted of six interrogatories, lettered A to F inclusive. For our purposes here it may be considered that the evidence would compel a finding that (A) Proctor was in a perilous position shortly before the collision; (B) that Barron, the driver of the truck, discovered that Proctor was in a perilous position, and (C) realized that Proctor would probably not free himself from such perilous position in time to avoid injury.

The next question contains the controlling inquiry in this case:

“(D) Do you find from a preponderance of the evidence that after Defendant discovered the peril of Orval H. Proctor, if you have so found, and realized that Orval H. Proctor probably would not free himself from such perilous position in time to avoid injury, if you have so found, within such time and distance that by the exercise of ordinary care in the use of all the means at his command consistent with the safety of himself and his truck, he, the Defendant, could have avoided the collision?”

Parts E and F of requested special issue No. 1 were conditioned upon an affirmative finding to Part D and inquired as to negligence and proximate cause.

The collision occurred upon a stretch of highway running approximately north and south between two curves about 1,000 feet apart. The truck involved consisted of a tractor-trailer combination. The tractor was equipped with a Diamond T diesel motor, with single wheels in front and dual wheels in the rear. A total of six tires were on the tractor. The trailer consisted of a large gasoline tank having a capacity of 5980 gallons mounted upon four sets of dual wheels — eight tires.

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