Westbrook v. Reed

531 S.W.2d 890, 1975 Tex. App. LEXIS 3350
CourtCourt of Appeals of Texas
DecidedDecember 15, 1975
DocketNo. 8613
StatusPublished
Cited by5 cases

This text of 531 S.W.2d 890 (Westbrook v. Reed) 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
Westbrook v. Reed, 531 S.W.2d 890, 1975 Tex. App. LEXIS 3350 (Tex. Ct. App. 1975).

Opinion

REYNOLDS, Justice.

Plaintiff sought to hold the two actors in a primary vehicular collision and their employers liable for the personal injuries he received while a passenger in a vehicle involved in a secondary collision with one of the vehicles in the primary collision. The jury refused to find negligence on the part of one of the primary collision actors, but found the other guilty of negligence which was a proximate cause of plaintiff’s injuries. The trial court disregarded the proximate cause finding and rendered a take-nothing judgment from which plaintiff has appealed, challenging only the court’s adjudication of lack of proximate cause. There being evidence of probative force supporting the jury’s finding of proximate cause, the court was not authorized to disregard the finding. Affirmed in part; reversed and rendered in part.

Defendant John Henry Reed was in the employ of, and he was operating a truck tractor towing a trailer owned by, defendant Dicky’s Dozer Service as he proceeded in a northerly direction along U. S. Highway 385, a road with which he was familiar. About nine o’clock in the morning some three miles north of Dimmitt, Texas, where the two-lane highway is forty-four feet wide from improved shoulder to shoulder, he approached a dense sandstorm. A high velocity wind was blowing dirt from a field lying to the west of the highway to the east and across the highway, reducing visibility to not more than four feet. Reed slowed his vehicle and, after observing two southbound automobiles emerge from the dust “right close together,” he drove into the sandstorm at a speed of ten to fifteen miles an hour knowing, so he testified, there would be vehicles travelling south in the left lane. The thick dust obliterated his view of the highway.

Approaching from the north was defendant John Kesner Fore, an employee of defendant Burke Inman Trucking, whose truck tractor and trailer Fore was operating in a southerly direction. When Fore came to the sandstorm, he reduced his speed to ten miles an hour and entered it. Because Fore’s vehicle shielded the blowing sand, he was able to observe the yellow center line on the black highway.

After Reed and Fore had travelled approximately 100 and 200 yards, respectively, into the sandstorm, the two truck tractors collided left fender to left fender with little [892]*892physical damage to the trucks and without personal injury to the drivers. The evidence is that Fore was operating his vehicle in his lane of traffic and, according to Reed who could not see the road, Reed’s vehicle apparently drifted to his left and, so Fore said, into Fore’s lane. Following the collision, Reed and Fore met at the front of the trucks- to assess the damage.

Meanwhile, nearing the scene from the north were plaintiff Odis Westbrook as a passenger in, and Danny Flanary as the operator of, a tractor-trailer owned by Ray Atkinson Pipe & Supply Company, by whom they both were employed. Entering the cloud of dust, Flanary slowed his speed to between thirty and forty miles an hour.

Reed and Fore, hearing the noise of the tractor-trailer operated by Flanary within one to two minutes after their primary accident, ran away from their trucks and off the highway. It was Reed’s testimony that “Those up here (the southbound vehicles subsequently striking Fore’s trailer), we could do nothing about because we had no time to, but we could on this end (the southern part of the sandstorm) where nobody had come in.” The tractor-trailer driven by Flanary impacted the rear of Fore’s trailer, and Westbrook sustained serious injury.1

Westbrook instituted this suit against, and sought to recover damages for his personal injuries from, John Henry Reed, Dicky’s Dozer Service, John Kesner Fore and Burke Inman Trucking. After the defendants had answered, Insurance Company of North America, alleging it was the workmen’s compensation insurance carrier for Ray Atkinson Pipe & Supply Company, intervened to receive out of any recovery by Westbrook the amount it had paid in workmen’s compensation benefits to, and the sum of medical expenses paid on behalf of, Westbrook together with its reasonable attorney’s fees.

The jury found that Reed drove his vehicle to the left of the center line of the highway which was negligence and a proximate cause of Westbrook’s injuries. The jury was not convinced that either Reed or Fore was negligent in continuing to drive along the highway under the existing conditions or in failing to turn his vehicle to the right immediately before the primary collision. Although Westbrook had alleged that his injuries were also proximately caused by the negligence of Reed and Fore in failing to warn of the dangerous condition existing as a result of the primary collision, issues inquiring about these matters were not submitted to the jury.

Flanary’s rate of speed and his failure to apply his brakes or otherwise slow his vehicle and to keep a proper lookout did not, in the jury’s view, meet the standards of a person using ordinary care under the same or similar circumstances. The act of commission and both acts of omission were each found by the jury to be a proximate cause of Westbrook’s injuries.

The jury refused to find that Flanary and Westbrook were engaged in a joint enterprise or that Westbrook failed to keep a proper lookout for his own safety. Finding that Westbrook failed to request Flanary to further reduce his speed, the jury did not find that the failure was negligence.

The trial court found that the verdict was for defendants Fore and Burke Inman Trucking and, following a hearing on a motion by defendants Reed and Dicky’s Dozer Service, the court further found that, as a matter of law, Westbrook’s injuries were not proximately caused by any negligence of Reed and Dicky’s Dozer Service. [893]*893Thereupon, the court rendered judgment that Westbrook take nothing by his suit,2 and that Reed and Dicky’s Dozer Service take nothing by reason of their plea for indemnity and contribution from Fore and Burke Inman Trucking.3

Westbrook perfected an unlimited appeal from the judgment, but the only appellate issue raised is whether the trial court was correct in disregarding the jury’s finding that Reed’s negligence was a proximate cause of Westbrook’s injuries. Rule 301, Texas Rules of Civil Procedure, authorizes the court to disregard any special issue jury finding that has no support in the evidence, but the rule is inoperative if there are conflicting facts bearing on the question of proximate cause, Robertson v. Alberty, 499 S.W.2d 361, 363 (Tex.Civ.App.— Amarillo 1973, no writ); cf. Liberty Film Lines, Inc. v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983 (1941), for then the question whether a negligent act is a proximate cause of the injury is for determination by the fact finder. Clark v. Waggoner, 452 S.W.2d 437, 439-40 (Tex.1970).

In Texas, two elements are necessary to constitute proximate cause: cause in fact and foreseeability, Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355 (1951), and there must be proof of both elements. Enloe v. Barfield, 422 S.W.2d 905

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Bluebook (online)
531 S.W.2d 890, 1975 Tex. App. LEXIS 3350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westbrook-v-reed-texapp-1975.