Texas Brine Corp. v. Lofton

751 S.W.2d 197, 1988 Tex. App. LEXIS 431, 1988 WL 16818
CourtCourt of Appeals of Texas
DecidedMarch 3, 1988
DocketC14-83-480-CV
StatusPublished
Cited by6 cases

This text of 751 S.W.2d 197 (Texas Brine Corp. v. Lofton) 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
Texas Brine Corp. v. Lofton, 751 S.W.2d 197, 1988 Tex. App. LEXIS 431, 1988 WL 16818 (Tex. Ct. App. 1988).

Opinions

OPINION

SEARS, Justice.

Appellant, Morris Wayne Johnson, while in the course and scope of his employment with appellant, Texas Brine Corporation, was driving an eighteen wheel truck that collided with a pickup truck driven by ap-pellee, Andrew K. Lofton. Lofton brought suit against the appellants for personal injuries sustained in the collision and the jury awarded him $113,500. The amount of recovery was reduced by 35%, which was the percentage of comparative negligence attributed to Lofton by the jury. This court reversed the judgment of the trial court. Lofton filed a writ of error with the Supreme Court and, in a per curiam opinion without oral argument, the Supreme Court reversed the judgment of this court1 and held that this court failed to consider all the evidence before reversing the jury’s verdict. In addition, the Supreme Court held that this court did not clearly detail how the evidence supporting the verdict was insufficient. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986).

A review of the history of this appeal is necessary. On original submission of this case, two opinions were issued by this court. The majority opinion held that the evidence was insufficient to support the jury finding that Johnson’s speed was a proximate cause of the accident. The dissenting opinion held the evidence to be [199]*199sufficient. On motion for rehearing, three opinions were written by this court. One justice held there was no evidence to support the finding of speed as a proximate cause, one justice held there was insufficient evidence to support the jury finding that speed was a proximate cause, and the third justice again dissented and held the evidence was sufficient to support the jury finding. On second motion for rehearing, an additional opinion was issued by this court further substantiating the lack of evidence to support a finding of speed as a proximate cause. In other words, six opinions were written by three justices of this court prior to the filing of a writ of error in the Supreme Court. I therefore respectfully disagree with the Supreme Court’s conclusion that, “it appears the court did not fully consider the evidence in determining the sufficiency points.” However, we will again review all of the evidence that has any relevance to the issue of speed as a proximate cause of the collision.

At the time of the accident Johnson was traveling in the eastbound lane of FM 2917, a two lane road with a posted speed limit of fifty-five miles per hour. Prior to the accident, Lofton had been northbound on FM 2004, which dead ends at FM 2917. On the south side of FM 2917, several hundred feet before reaching FM 2004, there is a right turn lane for eastbound traffic. Immediately prior to the accident, Lofton’s pick-up truck was in that right turn lane approximately 300 feet west of the intersection of FM 2917 and FM 2004, and he was facing west rather than east. In other words, Lofton was on the wrong side of the road and facing the wrong direction. As Johnson approached Lofton, Lofton drove his pick-up truck perpendicular to FM 2917 and in the direct path of Johnson’s truck. Johnson’s truck struck the left midsection of Lofton’s truck and the force of the impact drove Lofton off the north side of the road.

APPELLEE LOFTON

Lofton testified that prior to the accident he had been attending a welding class and, upon leaving the class at 7:30 p.m., he went to his parked pick-up and wiped off the windshield inside and out. He testified it was so foggy he could not see past the hood of his truck. He left the parking area and drove to the stop sign where FM 2004 dead ends into FM 2917. Lofton testified that he turned left and stated that his next memory was of being in the ambulance. His attorney asked him if he remembered which lane of traffic he was in at the point of impact and he responded that he did not. On cross-examination, Lofton was questioned regarding his prior deposition wherein he testified that he remembered getting in his truck and then waking up in the hospital, and that he did not remember anything in between.

REX BUELLER

Mr. Bueller, an employee of appellant Texas Brine Corporation, testified that Johnson was driving the eighteen wheeler in the course and scope of his employment with Texas Brine Corporation. He further testified that the tractor Johnson was driving weighed approximately 16,000 pounds, the trailer approximately 10,000 pounds, and the load of brine approximately 45,000. He testified that the total weight of Johnson’s vehicle was approximately 71,000 pounds and that the vehicle was licensed for 80,000 pounds.

APPELLANT JOHNSON

Johnson testified that he was very familiar with the road and the configurations as he had traveled highway FM 2917 on many occasions. He testified that immediately prior to the accident the fog was very heavy. In his deposition he testified that, “he could not see his hand in front of the hood of the car.” At trial Johnson testified that he was traveling approximately forty to forty-five miles per hour at the time of the collision and, in a deposition he testified that his speed was approximately forty-five to fifty miles per hour. He indicated that he really could not remember his speed, but that he knew it was less than fifty miles per hour. Johnson further testified that several cars had passed him traveling in the opposite direction and, that immediately [200]*200after one or more cars passed him, he saw Lofton’s headlights on the right shoulder of the road facing in his direction. He testified that as soon as he saw Lofton’s headlights, Lofton’s pick-up pulled out on the highway in front of him. Johnson testified that he tried to turn his truck to the left and lock up his brakes at the same time, but that he immediately struck Lof-ton’s truck. In response to questions regarding the distance between the trucks when Johnson first saw Lofton, Johnson testified, “I was right on top of him.” Johnson had previously testified by deposition that the trucks were approximately six feet apart when he first saw Lofton. Later testimony of an accident reconstructionist established this distance to be 120 feet. Johnson testified that he cut his wheels to the left in an effort to “go with him.” It was Johnson’s belief that the impact would be less severe if he turned his truck in the same direction that Lofton’s truck was traveling. Johnson further testified that immediately after the accident he exited his truck to check on Lofton, but that two or three other people were already there.

JACK PETTIT

Jack Pettit was an officer for the Department of Public Safety with approximately twelve and one-half years experience as an accident investigator. He testified that he was notified of the accident at 7:55 p.m. and arrived at the scene of the accident at 8:22 p.m. Officer Pettit took no photographs and made no measurements of any of the physical evidence at the scene of the accident. He testified that there were no known witnesses other than the drivers, and that Johnson told him Lofton’s truck swerved into his lane and Johnson tried to take action to avoid the collision but was unable to do so.

Officer Pettit talked with Lofton at the emergency room of the hospital shortly after his investigation at the scene of the accident. Lofton told Officer Pettit that he had no memory of anything related to the accident.

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Bluebook (online)
751 S.W.2d 197, 1988 Tex. App. LEXIS 431, 1988 WL 16818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-brine-corp-v-lofton-texapp-1988.