Reinhart v. Young

OPINION

OLIVER-PARROTT, Chief Justice.

The trial court entered a judgment in favor of William Carl Young, appellee, after a jury-found he was not negligent in rear ending the automobile of appellants, Thelma Rein-hart and Sallye Treme. The sole complaint on appeal is that the court erred in submitting an instruction on unavoidable accident. We affirm.

Mr. Young, appellee, testified that he was behind appellants’ vehicle when it went over the top of an overpass. Mr. Young was trailing appellants’ vehicle between ½ and ¾ of a mile as it disappeared over the overpass. As Mr. Young came over the overpass, he saw appellants’ vehicle just on the other side either stopped or going very slowly. Mr. Young said he could not swerve left because of a guard rail, and because of traffic, he could not swerve right. Mrs. Treme, the driver of the other car, testified that at the time of impact, she was stopped due to traffic in front of her. The accident occurred on the back side of the overpass, although there was serious dispute as to the exact point of the accident.

The only function of an explanatory instruction in the court’s charge is to aid and assist the jury in answering the issues submitted. Atchison, Topeka, & Santa Fe Ry. v. O’Merry, 727 S.W.2d 596, 601 (Tex.App.— Houston [1st Dist.] 1987, no writ). If an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is properly given. Tex. R.Civ.P. 277. A trial court is given broad discretion in determining the sufficiency of the instructions and definitions that it submits to the jury. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 578 (Tex.App.—Houston [1st Dist.] 1992, no writ).

It is the trial judge’s duty to determine whether the doctrine of unavoidable accident has been raised by the evidence. Francis v. Cogdell, 803 S.W.2d 868, 871 (Tex.App.—Houston [1st Dist.] 1991, no writ). The general rule for submission of an instruction on unavoidable accident is if there is evidence supporting the theory, the trial court is required to submit such an instruction. Scott v. Atchison, Topeka, & Santa Fe Ry., 572 S.W.2d 273, 280 (Tex.1978). If the judge finds there is some evidence tending to establish the necessary elements of the doctrine, and the doctrine is plead, then it is clearly the judge’s duty to submit such explanatory instructions as are proper to enable the jury to render a just verdict. Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 229 (Tex.App.—Houston [1st Dist.] 1983, no writ).

An unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex.1992). The instruction is ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick pavement, or obstruction of view. Id.; Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.1971); Brown v. Goldstein, 678 S.W.2d 539, 542 (Tex. App.—Houston [14th Dist.] 1984) rev’d on other grounds, 685 S.W.2d 640.

The dissent asserts, and we agree, that appellants presented evidence through several witnesses that disputed appellee’s claim of unavoidable accident; however, there was some evidence from Mr. Young himself that the overpass obstructed his view and prohibited him from seeing Mrs. Treme slow down or stop. With the evidence and the pleading, the instruction was proper. Charter Oak Fire Ins. Co., 658 S.W.2d at 229. Appellants have raised no points of error challenging the sufficiency of the evidence supporting the jury’s finding of no negligence and have confined their complaint solely to the instruction on unavoidable accident.

We overrule, therefore, appellants’ only point of error.

We affirm the trial court’s judgment.