L. M. B. CORPORATION, Petitioner, v. Louis GURECKY, Respondent, 501 S.W.2d 300

POPE, Justice. Louis Gurecky instituted this suit against L. M. B. Corporation for personal injuries he sustained in a collision between his vehicle and L. M. B.’s vehicle, which was being driven by Jose Gonzalez. Gonzalez was L. M. B.’s employee and was acting in the scope of his employment. The jury refused to make a finding that Gonzalez was negligent, but the trial court, believing that Gonzalez was guilty of negligence per se, rendered judgment for plaintiff Gur-ecky and the court of civil appeals affirmed the judgment. 489 S.W.2d 647.

We granted the application for writ of error because the judgments of the courts below were ruled by our decision in Christy v. Blades, 448 S.W.2d 107 (Tex.1969), which case this court overruled a few days after the judgment of the court of civil appeals in this case became final. See Southern Pacific Co. v. Castro, 493 S.W.2d 491 (Tex.1973). We reverse the judgments of the courts below and remand the cause to the trial court. Plaintiff Gurecky was driving his vehicle in a westerly direction on Highway 35 in Matagorda County in the late afternoon of September 15, 1968.

Gonzalez was driving a pickup truck in an easterly direction at a speed of sixty miles per hour. Gonzalez testified that his car began to weave by reason of a deflated tire, and when he applied his brakes, his car swerved to the left side of the highway and struck plaintiff’s car on the shoulder of the road on his, Gonzalez’s, wrong side of the road. Gonzalez’s presence on the wrong side of the road was a violation of

article 6701d, § 52, Vern.Tex.Civ.Stats., which requires a driver to drive upon the right half of the roadway. Gonzalez pleaded by way of an excuse for his presence on the wrong side of the road that he was faced by an emergency which he did not create.

The relevant special issues submitted by the trial court and the jury’s answers were: No. 1: “Do you find from a preponderance of the evidence that on the occasion in question Jose Ascension Gonzalez failed to keep the pick-up truck completely within the right half of the roadway?” “We do.” No. 2: “Do you find from a perponderance of the evidence that such action was negligence ?” “We do not.” No. 3: “Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question ?” “We do.” No. 4: “Do you find from a perponderance of the evidence that on the occasion in question Jose Ascension Gonzalez failed to make such application of the brakes as a person using ordinary care would have made?” “We do not.” The reasons which are suggested for the trial court’s rendition of a judgment in favor of the plaintiff Gurecky notwithstanding his failure to obtain a jury finding that the defendant was negligent in some particular are

(1) Gonzalez presented no evidence of any excuse for his being on the wrong side of the road, (2) evidence that a deflated tire caused the Gonzalez car to swerve to the left is not a permissible excuse which justified his being on the wrong side of the road, and

(3) Gonzalez did not request an issue and obtain a jury finding that his claimed excuse in fact existed. Contrary to the opinion of the court of civil appeals and plaintiff’s contention, Gonzalez introduced some evidence of his claimed excuse. He testified that he was moving at about sixty miles an hour when he saw plaintiff’s car at a distance he described as “approximately more than 400 feet.” He said that his tire was punctured, after which he tried to control the car and stop.

He testified that the pickup veered hard to the right and that there was a deep hole on his right, so that he tried to steer the pickup to stay on the highway. He said, “I was having a time.” When asked if he decided to turn to the left where it was smoother, he answered, “All I was trying to do was to control my vehicle to keep it on top of the pavement.” He said he did not make a brake application while his car was going to the right and that what happened “was very rapid.” He said, “I was having trouble. It was weaving.” After the accident, the pickup came to rest upside down.

Some pictures of the tire appear in the record, and they do not show nor does it appear from the record that the tire blew out, although Gonzalez at one place in his testimony said that it did. Gonzalez said that he looked at the tire after the wreck and that the tube was cut in two. He said the tube was protruding out of the tire. A Texas Highway Patrolman who investigated the accident testified that he examined the tire shortly after the accident. He said that the tire was not cut but was intact.

From all of this testimony, a jury could believe that the pickup was weaving on the road by reason of the deflated right rear tire, that things happened quickly, and that Gonzalez lost control of his car by reason of the low tire. Thus there is some evidence in the record of an excuse for Gonzalez’s presence on the wrong side of the road. Plaintiff Gurecky seeks to uphold the judgments for the additional reason that a deflated tire cannot fall within the limited range of permissible excuses which will justify one’s violation of a legislative standard of conduct, as explained by our decision in Impson v.

Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). We again disagree with plaintiff’s contention. In Impson, this court called attention to some of the permissible excuses for violation of legislative standards by quoting from Restatement (Second) of Torts § 288A (1965). One such excuse which is there listed is that the actor is confronted by an emergency not due to his own misconduct. The excuse in Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ. App.1952, writ ref’d n. r. é.), which justified a driver’s presence on the wrong side of the road was the blowout of a tire.

The plaintiff would have us draw a distinction between a blowout of a tire and a puncture and deflation of a tire, as the creating factors of an emergency. In our opinion, some of the evidence in this case shows that the events and actions immediately before the impact of the two cars occurred in a matter of a few seconds.

If the proof had shown that Gonzalez had been driving with a deflated tire at sixty miles an hour for a longer period of time, understandably the court could hold as a matter of law that the condition of the tire would not serve as an excuse for the pickup’s swerving to the wrong side of the road. In our opinion, a suddenly deflated tire, even in the absence of a blowout, may constitute a permissible excuse for a car’s presence on the wrong side of the road, and there is some evidence which supports that conclusion.

The third reason which the plaintiff Gurecky and the court of civil appeals give for upholding the trial court’s disregard of the jury’s refusal to find the defendant negligent is that the defendant, L. M. B., failed to request and obtain a finding on an excuse issue. That contention is entirely understandable, because our decision in Christy v. Blades, 448 S.W.2d 107 (Tex.1969), required such a finding. That case, however, was overruled by our decision in Southern Pacific Co. v. Castro, 493 S.W.2d 491 (Tex.1973).

The rule in Texas is that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation, whereupon the party with the burden of persuasion on negligence (plaintiff Gurecky) must obtain a jury finding that his adversary was negligent as measured by the common law or prudent man standard. In our opinion, the trial court properly submitted the common law negligence issue which inquired whether the defendant was negligent. The jury answered that issue favorably to the defendant.

From the discussion above it is also our opinion that the courts below were in error in disregarding the jury’s answer to that issue and rendering judgment for the plaintiff. We regard this, however, as a proper case for a remand for another trial rather than a rendition of judgment upon the verdict for the defendant. This court’s decision in Castro substantially altered the method of submitting a case to a jury when a party claims an excuse for his violation of a statutory standard of care.

We changed the practice not only in the manner of submitting special issues, but we also authorized more extensive instructions. We said that the trial court may inform the jury that the Legislature has established a uniform standard of safe conduct by stating the provisions of the statute and the court may also instruct the jury that the defendant as well as the whole public was charged in law with knowledge of those safety provisions. We said further that the court may give the jury an instruction or definition concerning any claimed excuse which is within the limits of Impson v.

Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). Thesé changes in the trial practice justify this court’s remand of this cause to the trial court in the interests of justice. Scott v. Liebman, 404 S.W.2d 288 (Tex. 1966). The judgments of the courts below are reversed and the cause is remanded to the trial court. STEAKLEY, J., dissents; WALKER and JOHNSON, JJ., join.