holding that the jury could have inferred that “a reasonably prudent person exercising ordinary care for his own safety and the safety of others using the highway would have looked to the west before driving from the shoulder into the traffic lanes”
How later courts described this case
- holding that the jury could have inferred that “a reasonably prudent person exercising ordinary care for his own safety and the safety of others using the highway would have looked to the west before driving from the shoulder into the traffic lanes”
- holding that a negative answer as to whether the plaintiff drove his pickup from the shoulder of the highway was not a finding that he did not drive his pickup from the shoulder of the highway onto the highway immediately prior to the collision
- holding that failure to meet a burden to prove something is not proof of the opposite proposition
- jury’s negative finding to special issue regarding truck driver’s actions before accident could not be treated as an affirmative finding of the opposite; jury’s refusal to find meant only that the party bearing the burden of proving the .fact failed to do so
Written by the judges who cited it.
The opinion
POPE, Justice
(dissenting).
I respectfully dissent. The judgment of this Court imposes a duty upon the lead driver to keep a lookout to the rear under circumstances that the law does not recognize. Campbell was in the lead proceeding in an easterly direction and was followed by defendant Transport’s truck. The jury found that (1) defendant’s driver, Robbins, failed to keep a proper lookout and (2) the failure was a proximate cause of the collision. The jury found on the contributory negligence issues that (3) plaintiff, Campbell, failed to keep a proper lookout, (4) which was a proximate cause of the collision. The term “proper lookout” was defined as such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances. The jury refused to find that (5) immediately prior to the collision plaintiff, Campbell, drove his pickup truck from the shoulder onto the highway and (6) left unanswered the conditionally submitted issues on negligence and (7) proximate cause.
In my opinion the majority has confused the problem of “no evidence” to support a finding with the real problem of immaterial findings. The trial court disregarded the findings on issues numbered three and four above because there was no evidence to support them. The Court of Civil Appeals affirmed the judgment because those findings were immaterial.
Under the long-standing general rule in Texas, the lead driver is under no duty to keep a lookout for traffic which approaches from the rear. Jones v. Downey, 359 S.W.2d 116 (Tex.Civ.App.1962, writ ref. n. r. e.); Solana v. Hill, 348 S.W.2d 481 (Tex.Civ.App.1961, writ ref. n. r. e.); Kuykendall v. Doose, 260 S.W.2d 435 (Tex.Civ.App.1953, writ ref. n. r. e.); Bass v. Stockton, 236 S.W.2d 229 (Tex.Civ.App.1951, no writ); Le Sage v. Smith, 145 S.W.2d 308 (Tex.Civ.App.1940, writ dism. judg. cor.). The exception to that general rule is that a duty to look to the rear arises when the lead driver does something such as changing his lane or direction, stopping, or suddenly decelerating. Article 6701d, § 68, Vernon’s Ann.Tex.Civ.St.; Berry v. Sunshine Laundries & Dry Cleaning Corp., 387 S.W.2d 948 (Tex.Civ.App.1965, writ ref. n. r. e.); Riles v. Reichardt, 366 S.W.2d 655 (Tex.Civ.App.1963, no writ); Scott v. McElroy, 361 S.W.2d 432 (Tex.Civ.App.1962, writ ref. n. r. e.); Jones v. Downey, supra; Valley Film Service v. Cruz, 173 S.W.2d 952 (Tex.Civ.App.1943, writ ref. w. o. m.); Le Sage v. Smith, supra.
As the majority opinion correctly states, there was evidence both ways on whether Campbell, the lead driver, drove from the *197 shoulder of the highway. Campbell denied that he drove from the shoulder and steadfastly contended he was driving straight ahead. Transport’s driver asserted that Campbell drove from the shoulder onto the highway immediately ahead of Transport’s truck. That was the battleground in the trial court, and upon its determination by the fact finder depended the duty vel non of the lead driver to look to the rear. We have no similar problem in ordinary lookout issues.
I have some difficulty understanding this expression in the majority opinion about finding number IS, numbered five in this dissent: “Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff did drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact.” Surely it was the defendant’s burden to prove contributory negligence. 3 McDonald Tex.Civil Practice 1117, § 12.21. Mere proof that the lead driver failed to look to the rear did not discharge that burden. Proof that the lead driver drove from the shoulder onto the highway in front of a trailing driver without keeping a proper lookout would have discharged that burden. Applied to this case, Transport tried but failed to convince the jury of the circumstance upon which it relied which would give rise to Campbell’s duty to look to the rear.
This is not a case of no evidence of a circumstance which required Campbell to look to the rear. Because there was evidence and it was disputed, and because the jury refused to find the existence of the circumstance which defendant had to prove did exist, the defendant failed to prove a duty to keep a lookout to the rear. In a number of cases, the presence or absence of such a circumstance was established by undisputed evidence and a jury issue was unnecessary. Berry v. Sunshine Laundries & Dry Cleaning Corp., supra; Jones v. Downey, supra; Bass v. Stockton, supra; Valley Film Service v. Cruz, supra; Le Sage v. Smith, supra. In other cases, where facts about lookout to the rear which would impose a duty were disputed, courts have looked to jury findings to settle the facts. With the facts settled, the courts then knew what duty the lead driver owed the trailing driver. Riles v. Reichardt, supra; Solana v. Hill, supra; Edwards v. Houston Transit Co., 342 S.W.2d 787 (Tex.Civ.App.1960, writ ref. n. r. e.); Kuykendall v. Doose, supra. In all of the cited cases, the circumstance which would impose the duty to look to the rear was settled either by undisputed evidence or by a fact finding.
In Solana v. Hill, supra, Hill was the lead driver. As in this case, the jury found that he failed to keep a proper lookout, which would be to the rear, and that the failure was a proximate cause of the accident. In separate clusters of issues, however, the jury found that Hill was not stopped on the highway and “immediately prior to the collision [Hill] did not rapidly decrease the speed of his automobile on the highway.” The language of the issues is remarkably similar to that used in the issues in this case. The trial court looked at all of the findings and concluded that the one charged with the burden had failed to prove a circumstance which would impose a duty upon the lead driver to look to the rear, saying:
“As shown, the jury found that Hill did not stop on the highway and that he did not rapidly decrease his • speed on the highway, as plaintiff alleged. The only finding of negligence was that Hill failed to keep a proper lookout to the rear. * * * The court disregarded said findings upon the theory that, under the circumstances shown, as a matter of law, Hill had no duty to keep a lookout for cars traveling behind him. We think this was correct.”
The Court reached this result, not because there was no evidence of any circumstance requiring the lead driver to look to *198 the rear, but because other specific findings of the jury rendered the lookout finding immaterial. There was no duty to look to the rear.
It is my opinion that the refusal to find the existence of the circumstance which would require Campbell, the lead driver, to look to the rear, logically and legally excused that driver from looking to the rear. The only remaining basis for such a duty is the finding that Campbell failed to keep a “proper lookout.” The argument and the result of the majority opinion substitutes the reasonable prudent man test for the correct legal standard. It empowers a jury to impose a duty to keep a lookout to the rear though all the jurors believe that the lead driver did not stop, did not slow down, did not change lanes or direction, or did not drive from the shoulder onto the highway. A jury might suppose that all ordinary prudent drivers must look behind as well as ahead under all circumstances; otherwise, the Court would not have asked the question. When we look only to the jury’s finding on “proper lookout” we can not know factually whether any circumstance existed which required him to look to the rear. The issue and the answer are ambiguous. When we look to the specific issue that submitted the only factual circumstance which would impose the duty, we have an answer that undermines Transport’s theory of a duty owed by Campbell. The finding that Campbell failed to keep a “proper lookout” was immaterial. When we look at the whole verdict, it means that Transport’s driver negligently failed to keep a proper lookout for Campbell and that Campbell, though failing to keep a proper lookout to the rear for Transport’s truck, was under no duty to do so. One is not negligent in failing to do that which he is under no duty to do. Le Sage v. Smith, supra.
Upon settled and old common-law principles, courts may and often have disregarded findings upon defenses which in law were not valid defenses. Brown v. Rentfro, 57 Tex. 327, 332 (1882); Hays v. Stone, 36 Tex. 181 (1871); 3 Texas L.Rev. 450 . As stated in 4 McDonald, Tex.Civil Practice 1408, § 17.31:
“A special issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings. * * * Also immaterial are special issues which erroneously submit questions which call for findings beyond the province of the jury; e. g., questions of law or of evidentiary matters. * * *
“Special issues which are properly submitted often are rendered immaterial by the jury’s findings upon other issues. * * * But issues which have been unconditionally submitted likewise may be rendered immaterial by findings upon other issues. This will be true when the factual situation established by the other findings is such either that no answer to the immaterial issue could properly be made or that any answer to such issue would be wholly without legal significance.”
I would affirm the judgments of the courts below.
GRIFFIN, SMITH and NORVELL, JJ„ join in this dissent.