Trinity River Authority v. Williams

ROBERTSON, Justice,

concurring and dissenting.

I concur in part and dissent in part. The court of appeals was correct in its holding that there was no causal connection between the alleged contributory negligence and the accident. 659 S.W.2d at 725. Accordingly, I disagree with the majority’s opinion to the extent that it reinstates the damage reduction for contributory negligence.

Special Issue No. 14 inquired whether the two men knew or should have known of the dangerous back currents. The jury answered “no.” Thus, the jury refused to find that Williams and Magaziner knew of the danger that ultimately caused their deaths.

It was not the mere turbulence of the waters that killed the two men. Indeed, they fished for some time on those waters before being caught up in the back currents. The danger of the river was the back currents; and it was the back currents which caused the deaths of Williams and Magaziner. By its answer to Special Issue No. 14, the jury refused to find that the men appreciated the general danger of the river or that they could have reasonably foreseen the risk involved. Therefore, as a matter of law, they should not be held contributorily negligent. See Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970). In all other respects, I concur with the result reached by this Court.

SPEARS, J., joins in this concurring and dissenting opinion.