Biggers v. Continental Bus System

303 S.W.2d 359 (1957)

Mrs. Patricia BIGGERS et al., Petitioners, v. CONTINENTAL BUS SYSTEM, Inc., et al., Respondents.

No. A-5280.

Supreme Court of Texas.

May 22, 1957.

Rehearing Denied July 10, 1957.

*361 Butler, Binion, Rice & Cook, Wm. N. Blanton, Jr., Houston, for Commercial Standard Ins. Co.

Pepper & Markward, Fort Worth, James P. Hart, Austin, for Mrs. Biggers and minor children.

Andrews, Kurth, Campbell & Bradley, Hall E. Timanus, Houston, for Betty J. Epps Gross and husband.

Looney, Clark & Moorhead, Austin, Chilton Bryan, Houston, Strasburger, Price, Kelton, Miller & Martin, Dallas, for Continental Bus System, Inc.

Hamblen & Bobbitt, Karl E. Kraft, Houston, for A. H. Lightfoot and others.

CALVERT, Justice.

On December 12, 1956 we entered judgment in this case affirming the judgment of the Court of Civil Appeals and filed an opinion now reported in 298 S.W.2d 79. On February 27, 1957 we overruled a motion for rehearing filed by petitioners, but thereafter granted a second motion for rehearing. We now set aside our former judgment and reverse the judgment of the Court of Civil Appeals and remand the cause to that court for further proceedings as per the opinion which follows.

This is a suit by Mrs. Patricia Biggers and her children for damages resulting from a collision between a Ford automobile driven by Enoch A. Biggers, Jr., husband and father of petitioners, and a passenger bus belonging to Continental Bus System driven by Jack P. Lanham, an employee of the Bus Company. Continental Bus System and Mrs. Betty Jo Epps Gross and husband, William Gross, Jr., were defendants in the suit. The collision took place on Highway 75 about eight miles north of Huntsville, Texas, about 8:52 a. m. on December 20, 1951. Enoch A. Biggers, Jr. was killed instantly in the collision.

The bus belonging to Continental was proceeding generally in a northerly direction from Houston to Madisonville, Texas, on Highway 75, and was on its own proper right side of the highway, well to the right of the center stripe of such highway. The collision between the vehicles took place 138 feet north of a bridge over Nelson Creek. The highway was 24 feet wide at the point of the collision and the bridge was 28 feet wide. As the bus was being driven north along the highway, three automobiles were approaching from the north traveling south on the highway. The first was a Hudson automobile. Approximately 100 or more *362 feet behind the Hudson was the Ford driven by Enoch A. Biggers, Jr., and a short distance behind the Ford was a Chevrolet automobile driven by Miss Betty Jo Epps accompanied by Mrs. Ernest De Jernett. By the time of the trial Miss Epps had married William Gross, Jr. It had been raining and the paved portion of the highway was wet. As the Hudson approached the bridge across the highway the driver of the Hudson slowed down to observe the creek to ascertain if it was too muddy for fishing. The shoulders on both sides of the highway were wet and muddy. There is evidence that the Hudson was being driven at 40 to 45 miles per hour and was slowed to 10 to 15 miles per hour. The Ford was being driven faster than the Hudson, so when the Hudson slowed down the driver of the Ford put on his brakes to avoid a collision with the Hudson. Mrs. Gross saw the brake light of the Ford go on, and she put on her brakes to avoid colliding with the Ford. Her brakes locked the wheels on the Chevrolet and it slid into the Ford, striking it a little to the right of the center of the rear bumper. This resulted in the Ford being propelled somewhat diagonally eastward into the bus' right-hand side of the highway. The collision resulted between the bus and the Ford and all three occupants of the Ford were killed instantly.

Upon a trial before a jury the jury answered most of 79 special issues favorably to the plaintiffs. The jury found the driver of the bus guilty of negligence in failing to keep a proper lookout, in failing to apply his brakes, in driving at an excessive rate of speed and in driving at a speed in excess of 55 miles per hour, and found each act of negligence to be a proximate cause of the collision. The driver was found not to have been acting in an emergency created by conditions other than his own negligence. The jury found Mrs. Gross guilty of certain negligent acts each of which was also found to be a proximate cause of the collision. Biggers was absolved of all charges of negligence. He was found to have acted in an emergency after the Ford was hit by the Chevrolet. The driver of the Hudson was also absolved of all charges of negligence. The collision was found not to have been the result of an unavoidable accident. Plaintiffs pleaded "discovered peril" as a ground of recovery and the trial court by appropriate issues submitted this ground of liability. The jury, in answering these issues found that the discovery by the bus driver of the perilous position of the deceased did not occur at such time that the driver could have avoided the collision. Any liability on the part of Continental by virtue of the doctrine of discovered peril is therefore not in the case as presented to us. All parties are agreed that no recovery can be had under that doctrine.

Judgment was entered by the trial court as follows: Plaintiffs were awarded judgment against Continental and Mrs. Gross and husband, jointly and severally, for the amount of their damages as found by the jury in the sum of $101,080; Continental and Mrs. Gross were each denied a recovery over against the other by way of indemnity; Commercial Standard Insurance Company, an intervenor, was subrogated to so much of plaintiffs' judgment as was necessary to reimburse it for the sum paid to the plaintiffs under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., and Continental and its driver were denied any recovery of damages for their injuries claimed in a cross-action against Mrs. Gross and husband and in a third-party action against Texas Motors, a partnership, the employer of Biggers. Continental and Mrs. Gross and husband appealed, but in the Court of Civil Appeals Continental did not attack the judgment in so far as it was denied a recovery against Mrs. Gross and husband or against Texas Motors.

Upon appeal the Court of Civil Appeals reversed the judgment of the trial court in part and rendered judgment that the plaintiffs take nothing against Continental upon the ground that, as a matter of law, none of the negligent acts of the bus driver was a *363 proximate cause of the collision. The judgment of the trial court was otherwise affirmed. 277 S.W.2d 228. A more detailed statement of facts will be found in the opinion of the Court of Civil Appeals.

The judgment of the Court of Civil Appeals in favor of Continental must be reversed if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support any one of the findings of proximate cause. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498. Moreover, we must approach a determination of the question in the light of our former admonition regarding questions of "no evidence" that "Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action." Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983.

If we could give controlling effect to evidence that the Ford entered the wrong traffic lane when the bus was only 15 or 20 feet distant, that the Ford was observed to "jump" out in front of the bus, or that the Ford entered the bus' lane of traffic less than two seconds before the collision; or if we were at liberty to use that evidence as our view of the probable facts in reconstructing the scene of the collision and the circumstances surrounding it; or even if we were permitted to consider that and similar evidence in deciding whether there is evidence of probative value to support the jury findings of proximate cause, we might find justification for setting aside those findings. But we may do none of these things. The boundaries of our duty are well established by decisions of this Court. We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698; Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562.

If there is evidence to support the jury's finding of proximate cause in connection with any of the negligent acts, the findings in connection with the other negligent acts need not be considered. We have concluded that there is evidence of probative force supporting the findings that the excessive speed at which the bus was traveling was a proximate cause of the collision. Accordingly, we will not determine whether there is evidence of probative force supporting the finding that the failure of the driver of the bus to keep a proper lookout and to apply his brakes were each also a proximate cause of the collision.

The two necessary elements of proximate cause are foreseeability and causation. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355. Continental contends that neither element is present in this case.

Continental does not rest its contention that the element of foreseeability is absent entirely on the narrow ground that it was not required to foresee the exact manner in and by which the Ford entered the wrong traffic lane; its contention encompasses the broader view that one operating an automobile on a highway is not required, under any circumstances, to foresee or anticipate that an automobile traveling in the opposite direction may enter the wrong traffic lane. It concludes, for that reason, that the driver of an automobile cannot reasonably foresee that his own excessive speed may lead to a collision with another automobile in the wrong traffic lane. There are cases from other jurisdictions which would support a conclusion either way on that question. See cases collected in the annotations in 77 A.L.R. 598, 601, and 47 A.L.R.2d 6, 95. The Texas cases dealing with the question support a conclusion contrary to that for which Continental contends. Justiss v. Naquin, Tex. *364 Civ.App., 137 S.W.2d 72, writ dismissed, judgment correct; Blocker v. Brown Express, Inc., Tex.Civ.App., 144 S.W.2d 451, writ refused; Womack v. Hazelwood, Tex. Civ.App., 271 S.W.2d 699, writ refused, n. r. e. It will be noted that this court refused a writ of error in Blocker v. Brown Express, Inc., thus giving full approval to the opinion in that case and making the opinion as authoritative as one of its own opinions. Rule 483, Texas Rules of Civil Procedure; City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308, 314; Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994, 1000. This Court recognized in Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731, that excessive speed in meeting and passing another automobile could be a proximate cause of a collision with such automobile even if it were in the wrong traffic lane. The holding in Davis v. Younger Bros., Tex.Civ.App., 260 S.W.2d 637, writ refused, n. r. e., must be related to the peculiar and unusual facts in that case which need not be detailed here. We do not understand it to be in conflict with the cases we have cited.

It would be wholly out of keeping with reality to hold that an operator of an automobile traveling on a modern, heavily-traveled public highway cannot and should not, under any circumstances, reasonably foresee that an automobile approaching from the opposite direction may, for some reason, enter the wrong traffic lane and thus be endangered by excessive speed which makes stopping, deceleration or turning aside to avoid a collision impossible or more difficult. In San Antonio & A. P. Ry. Co. v. Behne, Tex.Com.App., 231 S.W. 354, 356, the court, in referring to cases dealing with the element of anticipation and foreseeability in proximate cause, said: "From them, however, it will be seen that our Supreme Court has uniformly applied what might be termed a practical, common sense test, the test of common experience. The expression `natural and probable result' has been used and interpreted to mean what should reasonably be anticipated in the light of common experience applied to the surrounding circumstances." Common experience teaches that thousands of automobiles enter wrong highway traffic lanes every day, often under circumstances which absolve the driver of negligent conduct. It is a matter of common knowledge that a fair proportion of collisions on highways are "head-on" collisions, resulting from one of the automobiles being in the wrong lane of traffic. We must and do reject Continental's contention that excessive speed can never be a proximate cause of a collision, occurring in the operator's own lane of traffic, with an automobile traveling in the opposite direction.

Continental's narrower contention is that its driver could not reasonably foresee the unusual circumstance that the Chevrolet would strike the rear of the Ford and propel it into the wrong traffic lane. In support of this contention Continental cites Wiley v. Mercer, Tex.Civ.App., 282 S.W.2d 87; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613; Minugh v. Royal Crown Bottling Co., Tex. Civ.App., 267 S.W.2d 861, writ refused, and Volkmer v. Curlee, Tex.Civ.App., 261 S.W.2d 870, writ refused.

The facts in Wiley v. Mercer are substantially identical with the facts in this case. That case was a venue case in which the jurisdiction of the Court of Civil Appeals was final and it could not and did not reach this court for review. The court there held, as a matter of law, that excessive speed of the defendant's truck could not have been a proximate cause of a collision because the defendant's truck driver "was not chargeable with foreseeing that a third party such as Herman Moen would negligently strike the car of the plaintiffs from the rear and cause it to, without warning, be driven upon the side of the highway immediately in front of the truck." [282 S.W.2d 88.] We disapprove that holding. In effect it asserts that one's negligence cannot be a proximate cause of an injury unless the precise manner or means *365 of the injury resulting from the negligence can be foreseen. That view of proximate cause has been rejected by this court in a number of cases, notably in Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110 and Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847.

The true rule is correctly stated in Sullivan v. Flores where it is said that all that is necessary to establish that an actor's negligent act is a proximate cause of an injury is proof that "As a person of ordinary intelligence and prudence, he should have anticipated the danger to other created by his negligent act, and the rule does not require that he anticipate just how injuries will grow out of that dangerous situation." [134 Tex. 55, 132 S.W.2d 111.] So, in this case, it is sufficient that Continental's driver, as a person of ordinary intelligence, should reasonably have anticipated the danger to others created by his excessive speed if any one of the approaching automobiles should enter his traffic lane for the purpose of passing a preceding automobile, or by reason of skidding on the wet pavement, or for any other non-negligent reason. It is not necessary as a predicate to Continental's liability that the bus driver should have anticipated or foreseen the exact reason for the entry of one of such automobiles into his lane of traffic. We do not regard the Loftis, Minugh or Volkmer cases as being factually analogous with the instant case or the holdings on proximate cause in such cases as being in conflict with the holdings on that issue in the Sullivan and Carey cases.

We must next determine whether the record shows, as a matter of law, that the excessive speed of the bus did not actually contribute to cause the collision. If the record shows, conclusively, that the collision would have occurred in any event and regardless of the speed of the bus, the jury finding of proximate cause cannot stand. A decision of this question requires a more detailed statement of the evidence which is most favorable to petitioners. In making the statement we will honor the rule that it is in the province of the jury to resolve conflicts and inconsistencies in the testimony of a witness or between witnesses. Texas Law of Evidence by McCormick and Ray, page 3, sec. 3; Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563.

The operator of the Hudson automobile testified that as he was approaching the bridge he "slowed down to about 10 or 15 miles an hour." The Ford was behind the Hudson and the driver by applying the brakes diminished the speed of the Ford. In describing this operation Continental's driver testified that he observed that the driver of the Ford hit his brakes and slowed down to a very slow speed, about the same as the Hudson.[1] Pressed for an estimate as to the speed at which the Ford was traveling after it entered the bus' lane of traffic, the driver of the bus testified that he didn't know, that "it might have been 10 or 15 miles an hour, or 20 or 25 miles per hour, or 30 miles per hour." He had previously estimated the speed of the Hudson, after it had been slowed down, at 15 or 20 miles per hour.

The only testimony touching on the distance traveled by the Ford after it entered the bus' traffic lane also came from the driver of the bus. He testified that after the Ford turned out of its lane of traffic it traveled 40 or 50 feet south and 12 or 15 feet from west to east.

The evidence shows that from a point about seven-tenths of a mile south of the bridge the highway ran down a long grade toward the bridge and that while traveling down the grade toward the bridge the bus *366 passed a gasoline tank truck driven by Charlie Mitchell. Mitchell testified that he was half way down the grade traveling at a speed of 45 to 50 miles per hour and that the bus passed him and "spread the distance" between them before the collision. He estimated the speed of the bus at from 60 to 65 miles per hour.

Considering the evidence here detailed in its most favorable aspects in support of the verdict, the jury could reasonably have concluded that as the Ford entered and proceeded in the wrong traffic lane it was traveline at a speed of 10 miles per hour or 14.65 feet per second; that after entering the traffic lane it covered a distance of at least 52.3 feet (the length of the hypotenuse of a right trangle with sides of 50 and 15 feet in length), and that the bus was traveling at a speed of 65 miles per hour or 95+ feet per second. It accordingly could reasonably have concluded from simple arithmetical computations that it required approximately 3½ seconds for the Ford to cover the distance of 52.3 feet, and that in the same period of time the bus was covering a distance of 332 feet. Actually, there was other relevant testimony which the jury could have believed and which would support a conclusion that the time elapsing between the Ford's entry into the wrong traffic lane and the collision was much greater than 3½ seconds but the testimony is general in character and is incapable of exact measurement or analysis,[2] and for purposes of this opinion we will accept 3½ seconds as the greatest time period which the evidence will support.

The jury was not called upon to decide what rate of speed it regarded as reasonable for the bus as it approached the oncoming automobiles. Neither was it asked to fix the exact speed of the bus. It found only that the bus was traveling at a rate of speed in excess of 55 miles per hour and at an excessive rate of speed. According to the testimony of Continental's bus driver the highway was "wet enough to be slippery." The shoulders of the highway were wet and muddy making their use by the bus for avoiding a collision highly underirable if not actually dangerous. A string of three cars was approaching, the second in the string known to the driver of the bus to be traveling at a greater rate of speed than the first and the third at about the same rate of speed as the second, a situation presenting to the mind of a reasonable man the possibility that the second or third automobile might pull into its lift-hand lane to undertake to pass the car in front of it if the passing distance seemed reasonably sufficient, or that one of the automobiles might skid into the wrong traffic lane upon a sudden application of its brakes. The bus was a heavy vehicle, almost certain if traveling at a high rate of speed to visit destruction upon any vehicle with which it collided and death upon its occupants. These facts and circumstances and not unreasonable inferences drawn therefrom would, in our opinion, support a conclusion by a jury that a speed of 40 to 45 miles per hour was a reasonable rate of speed for the bus to have been traveling when the Ford entered its traffic lane.

The bus driver testified that he was about a half of a mile south of Nelson Creek bridge when he observed the three automobiles approaching from the north and that at that time the Hudson, the leading automobile, was about three-tenths of a mile north of the bridge. He thus had ample time and distance in which to reduce his speed to a reasonable rate before reaching a point where his speed would create a situation of imminent danger if one of the automobiles should enter his lane of traffic. He testified that he did not reduce his speed, however, and that he at no time applied *367 his brakes. The jury could reasonably have concluded that if the speed of the bus and been reduced to 40 to 45 miles per hour when the driver was first confronted with the inherent danger in the situation and had been traveling at that speed when the Ford entered the bus' lane of traffic the collision would never have occurred. If the bus had been traveling at a speed of 40 miles per hour or 58½ feet per second it would have needed 5½+ seconds to cover the 332 feet to the point of collision and the Ford would have had two additional seconds to clear from its path. If it had been traveling at a speed of 45 miles per hour or 66 feet per second it would have needed 5 seconds to cover the distance to the point of collision and the Ford would have had 1½ additional seconds in which to clear from its path.

The record reflects that at the time the collision occurred the Ford was traveling almost directly east and was in process of leaving the paved portion of the highway and that the bus was traveling at a slight angle toward the east edge of the pavement. The bus driver testified that he swerved to his right when he was about 15 or 20 feet from the Ford. The photographs reflect that the front of the bus hit the Ford on its right side and that the left front wheel of the bus ran up on the Ford near the rear of its single right-hand door, crushing the Ford. This crushing force left a place gouged out of the pavement a few feet from the east edge thereof. The bus came to a stop on the east shoulder of the highway 145 feet from the point of collision. If the width of the bus and the length of the Ford are shown by the evidence our attention is not directed thereto. The jury had photographs of both before it. The jury could reasonably have concluded that by traveling eastwardly at its speed of 14.65 feet per second a distance of approximately 29.30 feet in two seconds or even 22 feet in 1½ seconds the Ford would have cleared completely from the path of the oncoming bus, and thus that the excessive speed of the bus actually contributed to cause the collision.

We recognize that a detailed analysis of opinion testimony of time and distance in reconstructing an automobile collision and the events immediately preceding it may not reflect the true situation but it is a means of reconstruction which cannot be denied to a jury, and if that method of reconstruction will support the verdict of the jury our duty leaves us no alternative but to adopt it.

We hold that there is evidence of probative value in the record supporting the jury's finding that the excessive speed at which Continental's bus was being operated at the time of and immediately before the collision was a proximate cause of the collision. If Continental's negligent and excessive speed proximately contributed to cause the collision it is immaterial to Continental's liability that the negligence of Mrs. Gross also contributed thereto or that such concurring cause may not have been reasonably foreseeable. Walker, Inc., v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506, 510; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447; G. C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659, 661. It is a sufficient predicate of Continental's liability that the excessive speed of the bus was a substantial factor in bringing about the collision. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355.

The Court of Civil Appeals erred in rendering judgment that the plaintiffs take nothing against Continental. Continental's brief in the Court of Civil Appeals contained other points of error one of which (Point 11) reads as follows:

"The error of the Trial Court, assuming that the Bus Company was not entitled to judgment as a matter of law, in refusing to set aside the jury's verdict against it on the ground that such verdict was so totally and wholly *368 against the great weight of the evidence as to be clearly wrong. (Based on Paragraph 5, Amended Motion for New Trial, Tr. 358.)"

Paragraph 5 in Continental's amended motion for new trial reads as follows:

"Because the findings of the jury to Special Issues Nos. 1 through 79 and the judgment rendered thereon by the Court are totally and wholly against and contrary to the great weight and preponderance of the evidence and are based upon speculation, conjecture, assumption, presumption as to be clearly wrong and unjust."

Plaintiffs contend here, as they did in the Court of Civil Appeals, that point of error No. 11 was insufficient under our Rules of Civil Procedure to raise the question of the insufficiency of the evidence because it refers only to paragraph 5 in the motion for new trial which paragraph is too multifarious to be considered as a proper assignment of error. If the Court of Civil Appeals or this court were confined to a consideration of paragraph 5 of the motion for new trial as a predicate for the point of error we would be inclined to agree with the plaintiffs because the paragraph is so general as to point out no specific error to the court. It even asserts that findings in Continental's favor in response to the issues on discovered peril are against the great weight and preponderance of the evidence. However, Continental's motion for new trial also contained, in separately numbered paragraphs, assertions that the jury findings of Continental's negligence and proximate cause in answer to issues 1 and 2 on proper lookout, 4 and 5 on failure to apply brakes, 10 and 11 on excessive speed, and 13 and 14 on illegal speed, were unsupported by probative evidence and were against the overwhelming weight and preponderance of the evidence. These assignments adequately meet the requirements of Rules 321, 322 and 374, Texas Rules of Civil Procedure. Point of error No. 11 was germane to these assignments in the motion for new trial and the failure of the point to so state did not render it legally insufficient to preserve the questions raised in the assignments. Rule 418, Texas Rules of Civil Procedure, requires only that points of error be "germane to one or more assignments of error," not that they correctly state to which assignments they are germane on penalty of being refused consideration.

Plaintiffs further urge that point of error No. 11 and the questions presented in the assignments to which we have alluded were waived by Continental's failure to brief them. Continental briefed its "no evidence" points 1 and 2 at some length. It made no restatement of the evidence in connection with point 11, contenting itself with respect thereto with this statement: "Under this point we adopt the statement from the record contained in our discussion of our First and Second Points." By way of argument of the point it stated only that the verdict of the jury against the bus company was "so obviously against the overwhelming preponderance of the evidence as to indicate that it was a result of some improper element, such as bias, sympathy or prejudice" and was "so clearly wrong that it should be set aside." Having analyzed the evidence for the purpose of convincing the court that there was no evidence of probative force supporting the verdict, no good purpose could have been served by another analysis of the same evidence under point 11, and having argued at length that the evidence was, in law, no evidence, what more could Continental have said under point 11 than it did say?

The amended motion for new trial containing the assignments of error on which point 11 was based was a joint motion filed on behalf of Continental, J. P. Lanham, the bus dirver, and American Motorists Insurance Company. American Motorists had intervened in the case seeking subrogation to the extent of Workmen's Compensation benefits paid to Lanham. Lanham and American Motorists did not *369 perfect an appeal from the judgment which denied a recovery to Lanham. Plaintiffs argue that since Lanham and American Motorists did not appeal the assignments of error were lost to them and being lost to them must be held to have been lost to Continental also. We do not agree.

The Court of Civil Appeals did not rule on point of error No. 11.[3] After concluding that there was no evidence to support the findings of proximate cause the Court of Civil Appeals said [277 S.W.2d 234]:

"Our conclusion that these points present error requiring a reversal and rendition of the judgment against such appellant [Continental] renders unnecessary any consideration of appellants' remaining points which are directed to procedural and evidentiary errors and to the proposition that the verdict of the jury is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, each of which, if sustained would require a reversal and remand of the cause for retrial."

When a Court of Civil Appeals holds, on proper assignment, that a verdict of a jury or a judgment of a trial court has no support in the evidence we will assume, in the absence of a contrary showing in the opinion of the Court of Civil Appeals, that it has also sustained any proper assignment that the verdict or the judgment is against the great weight and overwhelming preponderance of the evidence, Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, but we will not indulge that assumption where the opinion of the Court of Civil Appeals shows clearly, as does the opinion in this case, that the assignment on insufficiency of the evidence has not been considered. McWilliams v. Muse, Tex.Sup., 300 S.W.2d 643, 646. The cause will therefore be remanded to the Court of Civil Appeals for consideration of Continental's point 11 and other points which have not been considered. The position of this Court regarding action to be taken by the Court of Civil Appeals on point of error No. 11 is harmonious with the view expressed in the dissenting opinion in Barker v. Coastal Builders, supra, wherein it is said (271 S.W.2d 812):

"If in the light of our analysis of the evidence and its mature consideration thereof the Court of Civil Appeals should conclude that the jury verdict is contrary to the great weight and preponderance of the evidence, it should have no hesitancy in reversing the judgment and remanding the case for retrial. If it should reach the opposite conclusion, it should affirm. In either event what we have said on the law question of `no evidence' should be no impediment and no source of embarrassment to the Court of Civil Appeals' own proper evaluation of the evidence on the fact question of `insufficient evidence' because that court and that court alone is made the final arbiter of that question."

In our opinion filed on original submission we stated that we found no merit in the application for writ of error filed in this court by Mrs. Gross. We remain of that opinion.

The judgment entered herein on December 12, 1956, affirming the judgment of the Court of Civil Appeals is set aside and judgment is now rendered reversing the judgment of the Court of Civil Appeals and the cause is remanded to that court as to all parties for further proceedings consistent with this opinion.

GRIFFIN, J., dissenting.

HICKMAN, C. J., not sitting.

*370 GRIFFIN, Justice (dissenting).

I have not changed my mind about this case and dissent from its present disposition.

I have set out my views at great length in the former majority opinion, and I adopt it as the dissent in this cause.

To me, the evidence shows beyond controversy that the Ford "jumped out" in front of the respondent's bus, as testified to by petitioners' own witness, Mitchell. When this happened (and without any negligence on the part of the bus driver) there did not remain sufficient time and distrance for the bus driver to have done anything to avoid the collision. Therefore, the Bus Company should not have any damages adjudged against it.

NOTES

[1] "Q. What did you observe the Ford do from the time the Hudson suddenly slowed down until the time of the impact, what did you see? A. Well, he slowed down and just hit the brakes and slowed down to a very slow speed * * *.

"Q. Did he slow down to the same speed as the Hudson was going after it had suddenly slowed down? A. It appeared to be about the same speed."

[2] Mrs. Gross, driver of the Chevrolet and a party defendant, testified that after colliding with the Ford she closed her eyes, opened them, turned off the ignition, turned to her companion and asked if she was all right and heard the crash of the collision as her companion was answering. It hardly seems reasonably probable that all of the events detailed could have occurred in 3½ seconds.

[3] In a dissenting opinion filed on original submission by the writer of this opinion it was stated that the Court of Civil Appeals sustained the point. See 298 S.W.2d 93. The statement was erroneous.