State v. Teer

542 S.W.2d 255, 1976 Tex. App. LEXIS 3228
CourtCourt of Appeals of Texas
DecidedOctober 7, 1976
DocketNo. 5599
StatusPublished
Cited by1 cases

This text of 542 S.W.2d 255 (State v. Teer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Teer, 542 S.W.2d 255, 1976 Tex. App. LEXIS 3228 (Tex. Ct. App. 1976).

Opinion

OPINION

JAMES, Justice.

This is a suit for personal injuries growing out of a car-truck collision. After jury verdict the trial court entered judgment in favor of Plaintiffs William L. Teer and wife Helen Joyce Teer against the Defendant State of Texas for $75,853.94 and costs, from which the State appeals. We affirm.

The Teers brought this suit against the State of Texas under the Tort Claims Act/ Article 6252-19, Vernon’s Annotated Civil Statutes, for personal injuries sustained by Mrs. Teer growing out of a collision of the car she was driving, with a State Highway Department dump truck driven by one Clauzéll Cox. As a result of the accident Mrs. Teer sustained severe injuries to her entire body, suffering a broken jaw, a ruptured spleen, bone fractures, and dental and head injuries. Plaintiffs alleged that the dump truck was backed from the right hand side of the road onto the highway so as to obstruct that portion thereof along which Mrs. Teer was travelling.

Trial was to a jury, which found:

(1) Clauzell Cox (the driver of the dump truck) failed to keep a proper lookout, (2) which was a proximate cause of the collision; (3) that Cox backed his vehicle when such movement could not be made with safety and without interfering with other traffic, (3A) which was negligence and (4) a proximate cause of the collision; (8) that [257]*257Mrs. Teer failed to keep a proper lookout, (9) which was a proximate cause of the collision; (16) that Mrs. Teer failed to properly apply her brakes, (17) which was a proximate cause of the collision; (20) that the Teers suffered the following damages, to wit, (a) $40,000.00 for past pain and suffering, (b) $30,000.00 for future pain and suffering; (c) zero for the value of Mrs. Teer’s past household services, (d) $15,-000.00 for value of the future loss of Mrs. Teer’s household services., (e) $7817.43 for past hospital and medical care, and (f) $2000.00 for future medical care. The jury further found in answer to special issue no. 21 that Clauzell Cox was 80% negligent and that Mrs. Teer was 20% negligent.

Pursuant to and in harmony with the jury verdict the trial court entered judgment that the Plaintiffs Teer recover $75,-853.94 and costs against the State of Texas, from which the State appeals. We overrule all of Defendant’s points and contentions and affirm the trial court’s judgment.

Appellant’s first point asserts the trial court erred in “refusing to properly instruct the jury in response to its note” sent to the court while the jury was deliberating. After the presentation of the evidence had been concluded and the jury was deliberating, the jury sent a written note to the court in the following language:

“Your honor: On Issue No. 3, do you mean Mr. Cox backed the truck in gear or involuntary rolling? Are in gear and involuntary rolling synonymous terms? Respectfully, Preston Shields.”

In response to this note the court sent back to the jury a note containing the following language:

“In reply to your inquiry I can give you no further instruction. Please carefully read the instructions in the charge heretofore given you.”

Special Issue No. 3, the subject matter of the jury’s note, was submitted to the jury in the following wording:

“Do you find from a preponderance of the evidence that on the occasion in question Clauzell Cox backed his vehicle when such movement could not be made with safety and without interfering with other traffic?”

Appellant takes the position that this issue is inquiring only about a voluntary “in gear” backing and did not inquire about any involuntary backward movement of the truck; and that the trial court erred in refusing to instruct the jury that it should not attribute to this issue an ambiguous meaning. In other words, Appellant says the trial court should have instructed the jury that the “backing” in the issue meant only a voluntary “in gear” backing. We do not agree.

The word “back” is a very common term, and the jury is supposed to use common sense and common interpretation of this language in arriving at their verdict. The word “back” or “backing” has a common interpretation and meaning and could mean either that the truck was driven back or rolled back.

As a matter of fact, there is no evidence in the record that Cox put the truck in gear and voluntarily backed the truck into the path of Mrs. Teer’s car. On the contrary, the evidence showed that immediately prior to the accident, Cox had parked the truck on the shoulder of the highway and was sitting in the cab of his truck under the steering wheel with the engine running, with the truck in neutral (gear), which truck was parked on an incline which sloped downward toward the direction from which Mrs. Teer’s car approached. Cox was sitting in the truck eating a sandwich at the time his truck was struck in the rear by Mrs. Teer’s car. More will be said about the facts of the collision under other of Appellant’s points; however, here it should be said that any movement of the truck immediately prior to the accident was shown by the evidence to be an involuntary rolling back as opposed to a voluntary “in gear” backing. We hold that the wording of this special issue inquired of an involuntary rolling back of the truck as well as an “in gear” backing, and that the trial court did not err in refusing to give further [258]*258instructions to the jury. Appellant’s first point is overruled.

Appellant’s points eight through twenty assert there is no evidence and insufficient evidence to support the jury’s answers to the following special issues:

(1) To special issue Nos. 1 and 2, wherein it was found Clauzell Cox failed to keep a proper lookout, and proximate cause because of same.

(2) 'fo special issues Nos. 3, 3(a), and 4, wherein the jury found that Clauzell Cox backed his truck when such movement could not be made with safety and without interfering with other traffic, that same was negligence, and a proximate cause of the collision.

(3) To special issue No. 20(d) wherein the jury found $15,000.00 as damages for loss of the value of Mrs. Teer’s household services in the future, and in the alternative that said amount is excessive.

From our careful examination of the entire record we find ample evidence to support the jury’s answers to all the above special issues, and hold that the evidence is legally and factually sufficient to support the jury’s answers to the above issues.

The accident happened on or about February 5, 1974, shortly after 9 o’clock in the morning in the outskirts of the City of Mexia, Texas, on U.S. Highway 84.

Shortly before the accident, Clauzell Cox, travelling west on U.S. Highway 84, pulled the State Highway Department dump truck off the main paved portion of the highway and onto the righthand shoulder of the highway in front of Jackson Tractor Co. and stopped to wait for the arrival of other equipment. His engine was running, the truck was in neutral gear, and the truck was sitting on an incline which sloped downward in an easterly direction from the truck towards the direction from which Mrs. Teer’s car approached. Cox was sitting in the cab of the truck, had gotten a sandwich out of his lunch box and was eating it, and he testified that at this time “something hit me from behind,” thereby causing his truck to “go forward to the right about five feet.” What hit him was an Opel automobile driven by Mrs. Teer.

On this occasion Mrs.

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542 S.W.2d 255, 1976 Tex. App. LEXIS 3228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-teer-texapp-1976.