Burt v. Lochausen

Mr. Justice Garwood,

joined by Justice Calvert, dissenting.

In Rogers v. Blake, 150 Texas 373 , 240 S.W. 2d 1001 , over the dissent of Justice Clyde Smith and myself, gross negligence was held as a matter of law not to exist where at nighttime the defendant driver deliberately and with foreknowledge of a stop sign guarding a city traffic artery, crossed that artery without stopping, at a speed which the jury could reasonably have found excessive under the circumstances and in the face of an automobile approaching at right angles to him, which the jury could reasonably have concluded the defendant either saw or should have seen. The defendant had no more justification for his misconduct than did respondent, Lochausen, here. On a smaller scale the physical facts of the accident, that is, the extraordinary performance of the defendant’s car in the course of the accident, were not dissimilar from those of the instant case. Here, as there, the driver had a positive interest in the safety of his *301 guest, if that consideration be material. There the driver knew from previous experience that the through street was a traffic artery guarded by stop signs and knew he was approaching it at right angles well before he tried to cross it. Here he was familiar with the road, including the curve, and for a few seconds before the accident was no doubt conscious of his excessive speed. There we had a deliberate disregard of a stop sign (which was both a legal command to stop and also a warning of danger) at a speed which could be taken as at least relatively excessive. Here there was speed along the four-lane highway of about seventy-five miles an hour, at a point where the limit at that hour was fifty five, and an attempt to pass two trucks going in the same direction just as the known curve was reached. There, as the defendant approached the intersection, another car, with normal headlights burning and visible, was closely approaching it along the traffic artery. Here no matter of cross traffic is involved but traffic going up and down the same four-lane highway on which the defendant Lochausen was traveling, though, no doubt, it was all visible just before the accident. The traffic situation here seems no more suggestive of obviously grave peril than it was in Rogers v. Blake. It usually is not a grave matter to overtake and pass a single line of vehicles on a four-lane highway, even with traffic approaching from the opposite direction. Broad highways are designed to reduce the dangers otherwise inherent in such operations. There is no evidence here that Lochausen was knowingly or even actually on the wrong side of the road. His alleged admission that he turned sharply in front of the van he last passed “to avoid oncoming traffic” does not mean he was on the wrong side any more than that the “oncoming traffic” was on the wrong side— which, if it was, it might well have been as the result of some unexpected move that surprised and confused Lochausen. Certainly it does not warrant an inference that Lochausen had been on the wrong side of the road for more than a few seconds if he ever was there. Other than this very brief and vague admission there is no evidence at all about the amount, character, previous visibility, or specific location of the “oncoming traffic.” For all the evidence shows, it may well have been but a single car, and up to the very last second before Lochausen turned right, may have seemed to be either too far away or two much on its own proper side of the road to suggest serious risk. There is no testimony from the driver of the on coming car as there was in Rogers v. Blake.

It is said that this broad highway was “a winding road” and the inference seems to be drawn that the curve where the acci *302 dent happened was a severe one. The evidence, however, appears undisputed that for a mile back from this curve the road included but one other and rather mild bend, that the permissible speed for that mile, including the last curve, was fifty-five miles per hour at night, and sixty in daylight, and that there was no warning sign at the curve itself. The latter, from the photographs in evidence, does not appear to be so dangerous that negotiating it at seventy-five miles per hour would be more certainly disastrous than Mr. Blake’s attempted crossing of a city traific artery in violation of a stop sign. To say that it was a “forty-five degree” curve means little in terms of actual risk. If only the radius of a curve be long enough and the road wide, well surfaced, and properly pitched, a far greater change in course than forty-five degrees can be safely made at very high speed.

Possibly mere speed beyond some given high rate should be considered as evidence of gross negligence, but here the speed was only twenty miles per hour above the legal limit and the curve itself no extraordinary hazard. There is no proof at all as to Lochausen’s speed more than a few second before the accident except his own testimony of a quite moderate rate and his alleged statement to the plaintiff’s attorney that he had been going in the neighborhood of fifty miles per hour. The only proof that might be argued to show a peristent course of misconduct is the testimony that Lochausen was familiar with the road and the curve — just as Mr. Blake knew about the stop sign in Rogers v. Blake.

We have, of course, held in Rowan v. Allen, 134 Texas 215 , 134 S.W. 2d 1022 , that proof of speed “between 45 and 50 miles an hour” within the city limits of San Antonio and a slight deviation at that speed to the wrong side of the road amounted to no more than evidence of ordinary negligence. In Bowman v. Puckett, 144 Texas 125 , 188 S.W. 2d 571 , we took pains to stress the facts that (a) the defendant driver had been proceeding at his high speed (ninety miles per hour) for quite a long time and failed to slow down after entering the city limits of the city in which the accident occurred, and (b) he did so notwithstanding his knowledge that the brakes of his car had a faulty tendency to throw the car to one side when applied. In Rogers v. Blake, the speed, while conservative in the absolute sense, was high in relation to what it would have been if the driver had stopped at the stop sign as he should have done.

It seems to me that in the instant case the court, without saying so, is basing its decision largely on the matter of high *303 speed. Now, as suggested above, such a basis might conceivably be a reasonably just and practical, though perhaps not altogether logical, way to settle a great number of these otherwise troublesome gross negligence cases. To say that one who knowingly and without special justification, drives over seventy miles an hour under any circumstances is reckless, and not just careless, would probably seem quite sensible to a great many people. Nor would it appear extraordinary to hold that the deliberate disregard of a stop sign is itself evidence of gross negligence. But holding otherwise on these points, as the abovementioned decisions indicate that we do, and purporting, as we do, to stand by those decisions, I think the present case affords no proof of gross negligence, and that the judgments below should be affirmed also as to the defendant-respondent Lochausen.

Mr. Justice Calvert concurs in the conclusion herein reached.

Opinion delivered May 21, 1952.