Foremost Dairies, Inc. v. McClung ( 1967 )

BATEMAN, Justice.

The appellee Raymond A. McClung recovered a judgment on a jury verdict against the appellant Foremost Dairies, Inc. for personal injuries received when his left leg was struck by a milk dolly operated by David Poovey, an employee of appellant. Poovey and appellee were engaged in delivering milk and other dairy products for their respective employers to various retail establishments. The judgment was based on a jury finding of failure on the part of Poovey to keep a proper lookout, which was a proximate cause of the collision.

In its first two points of error on appeal the appellant complains of the refusal of the court to submit to the jury a special issue on unavoidable accident. If the issue was raised by the evidence, appellant was entitled to have it submitted and this right cannot be lost or defeated by findings of negligence and proximate cause in response to other issues. In other words, even though such latter findings indirectly negative a finding of unavoidable accident, nevertheless the appellant was entitled to its submission if raised by the evidence. Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948); Humble Pipe Line Co. v. Kincaid, 19 S.W.2d 144, 148 (Tex.Civ.App., San Antonio 1929, writ ref’d); Kuykendall v. Doose, 260 S.W.2d 435 (Tex.Civ.App., Amarillo 1953, writ ref’d n. r. e.). The right of a party to have unavoidable accident submitted “must not be determined from the viewpoint of conditions as they appear after the verdict is returned, but from the viewpoint of what the jury might have found if the issue had been submitted to them.” Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633 (1935); Haynes v. Martinez, 260 S.W.2d 369 (Tex.Civ.App., Amarillo 1953, writ ref’d n. r. e.). It is therefore necessary to examine the evidence to determine whether the issue was raised.

Early on the day in question appellee and Poovey were delivering their employers’ products to a large supermarket. They used two-wheel freight dollies upon which were stacked four or five cases of milk Each would leave a supply of his products displayed in the dairy case in the sales area of the supermarket and transport the remainder on the dollies into a storeroom located in the rear portion of the store, which was separated from the sales area by a pair of swinging doors. Appellee entered this storeroom by opening the swinging door on the left side, and testified that this door was still open when Poovey entered the storeroom with his dolly and the several crates of milk loaded thereon. Poovey testified that, according to his recollection, both swinging doors were closed and that he entered the storeroom by pushing the dolly through the doors, and that, the doors being closed, he did not see appellee behind them until it was too late to avoid the collision. There were no other witnesses to the occurrence. The only substantial dispute in the testimony of appellee and Poovey is as to whether the left hand swinging door was open when Poovey entered the storeroom with his dolly and struck appellee, or whether both doors were closed. There is no evidence that Poovey saw appellee inside the storeroom in sufficient time to avoid the collision, but there was evidence that he did not see him because the closed swinging doors obstructed his vision.

In our opinion this evidence was sufficient to raise the issue of unavoidable accident. Where the evidence presents a theory under which the accident might have been found to have happened from causes different from the alleged negligence of the parties the issue of unavoidable accident is presented. Orange & N. W. R. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973 (1936); Texas & P. Ry. Co. v. Edwards, 36 S.W.2d 477 (Tex.Com.App. 1931, holdings approved). In Vergauwen v. Parsons, 294 S.W.2d 863 (Tex.Civ.App., Waco 1956, no writ), it was held that where the evidence showed the existence of an obstacle, in that case a row of trees or hedges, that might obstruct the view of motorists approaching an intersection, the issue of unavoidable accident was raised. It was also held in that case that in examining the facts to determine whether unavoidable accident is involved the evidence must be construed in a light most favorable to submission of the issue. Kuykendall v. Doose, supra, is to the same effect.

Appellee argues that unavoidable accident is not present in any case where the accident complained of could have been prevented by either party by the use of means suggested by common prudence, citing Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 777, 779 (Tex.Com.App. 1931, jdgmt. adopted) ; but in that case the court said:

“It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.”

Application of that test disclosed that the issue was not raised by the evidence of that case, but by applying the same test in the case before us we conclude that the issue was raised.

Therefore, we sustain appellant’s first two points of error.

Appellant’s other points of error relate to procedural matters which probably will not occur on another trial, and we see no necessity for us to pass on them now.

The judgment appealed from is reversed and remanded for another trial.

Reversed and remanded.