# Texas Brine Corp. v. Lofton

> Court of Appeals of Texas · April 11, 1985 · 698 S.W.2d 691

URL: https://www.frixlaw.com/law-library/cases/9682291

## Case

- **Full name:** TEXAS BRINE CORPORATION, Et Al, Appellants, v. Andrew K. LOFTON, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** April 11, 1985
- **Citations:** 698 S.W.2d 691; 1985 Tex. App. LEXIS 7563
- **Precedential status:** Published
- **Opinion:** Concurrence by Sears
- **Judges:** Junell, Murphy, Sears
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SEARS, Justice,
concurring.
I concur in the overruling of the Motion For Rehearing; however, I find no evidence to support the jury finding that appellant Johnson’s speed was a proximate cause of the accident, and I would render a judgment for appellants.
On Motion for Rehearing the appellee has indicated that the majority opinion found sufficient evidence that appellant’s speed was a “cause in fact” but failed to find sufficient evidence regarding “foreseeability.” However, the majority does not find that appellant’s speed was a cause in fact of the accident, nor do we find any foreseeability that will satisfy the test for proximate cause.
Appellee relies heavily on the testimony of the accident reconstructionist, and it was his testimony that established appellant’s speed at forty-one miles per hour at the time of the accident. The posted speed limit was fifty-five miles per hour; therefore, appellant was driving at a speed twenty-five percent less than the posted speed limit. There was testimony concerning heavy fog, and the jury could find appellant negligent in driving at an excessive speed under these conditions. Nevertheless, under the facts of this case, the speed of appellant was not a proximate cause of the collision. The jury found appellee was negligent in failing to keep a proper lookout and failing to yield the right-of-way, and found both to be proximate causes of the accident. Whether we consider the testimony of appellant or the accident recon-structionist, it is clear that when appellee started across the highway there was not sufficient time or space for appellant to avoid the collision, regardless of the intensity of the fog at the time of the collision.
Appellee, while having no recollection of the events leading up to the accident, would have us believe that the speed of *697 appellant was a proximate cause of the accident regardless of the speed at which appellant was traveling. In other words, appellee contends that because appellant’s vehicle was moving, it was a proximate cause of the accident. Appellee, throughout the direct and cross-examination of witnesses and particularly during argument to the jury, took the position that if appellant had reduced his speed “just one mile per hour” at any point along his route, he would have avoided the collision. The jury evidently was impressed by that argument. I am not. It could just as easily be argued that if appellant had increased his speed one mile per hour, had one cup of coffee more, or one cup less, he would not have been at that particular spot in the road at the time in question. However, so long as appellee pulled into appellant’s path at such a point in time that appellant could not avoid the collision, speed cannot be a proximate cause.
The “cause in fact” or “but for” test to be applied to determine the first prong of the definition of proximate cause, under the evidence produced in this case, can only be applied to the acts of appellee. Those acts were as follows:
1) Appellee failed to enter the highway on which appellant was traveling at the controlled intersection for such entry.
2) Appellee travelled approximately 800 feet towards appellant on the shoulder of appellant’s side of the road (the wrong side of the road).
3) Appellee then stopped and parked for an undetermined period of time, facing the oncoming traffic.
4) Appellee waited until appellant could not possibly avoid the accident and then for some unexplained reason ap-pellee accelerated his vehicle into the path of appellant’s truck.
5) Appellee failed to keep a proper lookout.
6) Appellee failed to yield right-of-way.
I therefore arrive at the inescapable conclusion that “but for” the negligent acts of appellee, the collision would not have occurred. Nothing that appellant did or failed to do was a proximate cause of the collision.
Each case should be controlled by its own unique facts and circumstances. Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1 , 175 S.W.2d 249 (1943); Central Freight Lines, Inc. v. Bergeron, 470 S.W.2d 117 (Tex.Civ.App.—Beaumont 1971, writ ref’d n.r.e.). The driver of a vehicle whose speed is alleged to be a proximate cause should be found liable by reason of such speed only if the accident in question was reasonably foreseeable, under these unique facts and circumstances, and could have been avoided but for the speed of the driver in question. See Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970). In the event the accident in question was not reasonably foreseeable, or, in the event it was reasonably foreseeable but could not have been avoided even if the driver reduced his speed, then speed is not a proximate cause of the accident. This court in Thornton v. Campise, 459 S.W.2d 455, 458 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.), has held that in order for the act complained of to be a proximate cause, the situation must be such that the collision would not have occurred “but for” said act. To hold a driver to a strict requirement that he “foresee” each and every possible accident-threatening occurrence, or to make speed a proximate cause merely because a vehicle is moving and “but for” that movement the accident might not have occurred, is not logical or in the best interest of justice. So long as appellee chose, for whatever reason, to dart into the path of appellant’s truck at such a point in time so as to make the collision inevitable and unavoidable, I cannot hold that merely because appellant’s vehicle was moving at some speed, that speed was a proximate cause of the accident. The Biggers opinion 1 and all cases reviewed by it or subsequent to it have a *698 common element woven into the opinions and the reasoning of the courts, and that common element is time: Time to take evasive action. All those cases dealing with the negligence of a driver who collides with another vehicle which is in the wrong lane have found speed to be a proximate cause only when the negligent acts of the driver in the wrong lane occurred at such a point in time that they were seen or perceived with sufficient time remaining before the impact for the other driver to “foresee” a collision and therefore reduce speed or take other evasive action.
The supreme court has even held that when a driver is traveling at a greater rate of speed than a person of ordinary prudence would have traveled under the existing circumstances, that excessive speed is not necessarily a proximate cause of a subsequent collision. Baumler v. Hazelwood, 162 Tex. 361 , 347 S.W.2d 560, 564 (1961). The court also found in Baumler that although there existed “some evidence of foreseeability from speed itself under the circumstances,” there was “no evidence that Baumler’s speed, whatever it was, was a proximate cause of the accident” The Baumler case has less evidence of actual speed than the case at bar; nonetheless, both juries resorted to pure speculation to determine whether or not the accident would have occurred “but for” the speed of appellant. We cannot allow speculation to dictate the jurisprudence of this great state.
The Biggers court recognized the significance of the ratio between “speed as a proximate cause” and “time to avoid” when they said: “We think there can be no doubt that if the Ford crossed over into the traffic lane in such a short time the bus driver could not put on his brakes, or slow his speed before the bus was on the Ford car, then the failure on the part of the bus driver to keep a proper lookout, to slow down, or apply brakes could not possibly be a proximate cause of the collision.” Biggers v. Continental Bus System, 157 Tex. 351 , 298 S.W.2d 79, 83 (1956). In the subsequent opinion in Biggers, the majority of the court said that if it could agree with the premise that the Ford “jumped” in front of the bus less than two seconds before the collision, it might find justification for setting aside the jury’s findings. 303 S.W.2d at 363 . See also Justice Griffin’s dissent at 370.
In this case, nothing could be clearer from the evidence than the fact that appel-lee “jumped” in front of appellant less than two seconds before impact. It follows that appellant could not foresee the negligent acts of appellee anymore than he could avoid the collision with appellee. Appellant had reduced his speed twenty-five percent below the posted speed limit, and there is simply no evidence that his speed was a proximate cause of this collision.
Based on the foregoing, it is further my opinion that appellant should recover his damages from appellee due to the negligent acts of appellee being the only proximate causes of the collision.
. Biggers v. Continental Bus System, 157 Tex. 351 , 303 S.W.2d 359 (1950).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682291. Public record. Not legal advice.