Andrew K. LOFTON, Petitioner, v. TEXAS BRINE CORPORATION, et al., Respondents, 777 S.W.2d 384

DOGGETT, Justice. Petitioner, Andrew K. Lofton sued Texas Brine Corporation and its employee Morris Wayne Johnson for personal injuries he received in a collision between the pick-up truck he was driving and a loaded eighteen-wheel semi-tractor-trailer rig driven by Johnson in the course and scope of his employment. The trial court rendered judgment on a jury verdict favorable to Lofton. The court of appeals held the evidence was factually insufficient to support the jury’s finding that Johnson’s negligence was a proximate cause of the accident. 751 S.W.2d 197.

We hold that the court of appeals applied the incorrect legal standard in its review of the sufficiency of the evidence. We reverse the judgment of the court of appeals and remand the cause to that court for further consideration in accordance with this opinion. It is undisputed that when the accident occurred fog significantly impaired visibility. The jury found that both Johnson’s speed and Lofton’s failure to keep a proper lookout constituted negligence proximately causing the accident. Causative negligence was apportioned 65% to Johnson and 35% to Lofton. Lofton’s damages were determined to be $113,500.

The trial court rendered judgment on the jury verdict for Lofton for 65% of $113,500, plus prejudgment and post-judgment interest and costs. On appeal a divided panel of the court of appeals held the evidence was factually insufficient to support the finding of proximate cause against Johnson. 698 S.W.2d 691. On the first application to this court, we granted writ of error and, without hearing oral argument, reversed and remanded to the court of appeals.

We held that the opinion of that court failed to detail all of the relevant evidence, to clearly state why the evidence supporting the jury’s finding was insufficient, and to state in what regard the contrary evidence greatly outweighs the evidence supporting the jury’s verdict. Lofton v. Texas Brine Corp., 720 S.W.2d 804 (Tex.1986) [Lofton I].

In particular, we wrote that the court of appeals could not base its analysis on the conclusion quoted from the concurring opinion overruling Lofton’s motion for rehearing, viz., “Nothing could be clearer from the evidence than the fact that appellee ‘jumped’ in front of appellant less than two seconds before the impact.” Lofton I at 805. The court of appeals’ original opinion was contrary to this court’s opinions in Alm v. Aluminum Co. of America, 717 S.W.2d 588 (Tex.1986), and Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986).

On remand, the same court of appeals panel again held that the evidence was factually insufficient to support the proximate cause finding. 751 S.W.2d 197. The opinion on remand criticizes this court’s failure to accept the “irrefutable” fact that Lofton’s vehicle jumped out in front of Texas Brine’s rig less than two seconds before impact. The whole opinion is based on the premise that such factual conclusion was established as a matter of law. The original concurring justice adopted his pri- or concurrance, and the original dissenting justice adopted his original dissent. In essence, nothing has changed.

The court of appeals disregarded the direct instructions of this court. This court need not defend its opinions from criticism from courts of appeals; rather they must follow this court’s pronouncements. Nevertheless, since we assume the majority of the court of appeals panel has honestly had difficulty recognizing some contrary evidence and inferences and applying the correct standards of law, we will briefly present a review of why the lower court’s analysis is incorrect. In this review we do not give every reason the analysis is incorrect.

The conclusion that Lofton jumped out from the wrong side of the road in front of Johnson less than two seconds before impact was not established as a matter of law. The physical evidence taken without expert

interpretation does not establish this. No tire marks or tread moldings of Lofton’s truck on the wrong side of the road were admitted in evidence. Pictures of the skid marks admitted in evidence show the marks from Lofton’s pickup truck are on his side of the road, and that the skid.marks from Johnson’s semi rig curve into Lofton’s lane of traffic. Johnson’s testimony as an interested witness did not establish the fact as a matter of law.

Testimony by an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it. Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 467 (Tex.1969). Lofton and Johnson were the only witnesses to the accident. Lofton’s inability to contradict Johnson was adequately explained by the evidence that Lofton received a severe head injury and remembered nothing about the accident.

Johnson’s testimony was neither free from internal inconsistency nor free from circumstances tending to impeach it. Johnson testified on deposition that all the skid marks were in his lane of traffic, but when confronted with the pictures in evidence at trial modified this testimony. The distances and other details varied in each version of Johnson’s testimony. Captain Charles Ruble, the accident reconstruction expert witness hired by Texas Brine Corporation and Johnson testified that portions of Johnson’s testimony (including distances in particular) were impossible to reconcile with the physical evidence.

Captain Ruble’s testimony does not establish the asserted facts as a matter of law, since it was conclusory and not free from internal inconsistency or impeaching circumstances. At one point Ruble testified he had “come back up with a minimum 41 miles per hour speed at impact” for Johnson’s truck, while at another point he testified he calculated “a range of thirty-eight to forty-three” as Johnson’s speed. He admitted that the coefficient of friction for the road upon which his calculations and conclusions were based assumed a dry surface although there was evidence the pavement was wet and slick.

Ruble testified that the skid marks of Lofton’s pickup showed that at impact it was transverse across the roadway with its bed extending 5 to 7 feet into Johnson’s lane of traffic. But Ruble testified that from the physical evidence alone, he had at first theorized that Lofton had begun a U-turn. The physical evidence alone thus did not allow Ruble to conclude that Lofton darted from the other side.

Only after a hypothetical question based upon Johnson’s testimony that “the first time” Johnson “noticed the headlights was when he saw headlights to the right side of his cab approaching in front of his truck,” did Ruble fully expound his theory that Lofton darted from the other side of the road. Additionally, Ruble’s time estimates assumed the veracity of Johnson’s testimony that he began evasive action and the braking process at the instant he saw Lofton’s vehicle.

Because it was based at least in part upon testimony provided by an interested witness, which the jury need not have believed, Ruble’s opinion on this point, even if uncontradicted, does not establish the fact as a matter of law. The court of appeals may not take as fact the conclusion that Lofton made an illegal maneuver so quickly that Johnson did not have time to avoid a collision. Such a conclusion again would take as true testimony based at least in part on the testimony of the interested witness Johnson.

Further, the presumed wrongful conduct of another may not be used to require that the exact sequence of events that produces the accident be foreseeable. There was evidence that Johnson’s speed was 40 to 50 miles per hour, and that the fog was so thick that at that speed one could not stop or avoid an object in the roadway after seeing it. The evidence established that Johnson knew visibility was impaired. The general danger of driving so fast in fog that one cannot stop or avoid an object in the roadway is foreseeable.

The particular manner in which the object (Lofton’s pickup) got in the roadway need not be foreseeable in this impaired visibility situation. This court has repeatedly held that only the general danger need be foreseeable, not the exact sequence of events that produced the harm. Nixon v. Mr. Property Management Corp., 690 S.W.2d 546, 550-51 (Tex.1985); Trinity River Authority v. Williams, 689 S.W.2d 883, 886 (Tex.1985); Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970). The dissenting justice in the court below was correct regarding the appropriate legal standard for reviewing the evidence.

We lack jurisdiction to determine the factual sufficiency of this evidence. Tex. Const. art. V, § 6; In re King’s Estate, 150 Tex. 662, 665-66, 244 S.W.2d 660, 661-62 (1951). We hold only that the court of appeals may not, as it has thus far done, substitute its own judgment for that of the finder of fact. Accordingly, we reverse the judgment of the court of appeals and remand the cause for further consideration in accordance with this opinion. GONZALEZ, J., dissents and files opinion. HECHT, J., dissents and files opinion joined by PHILLIPS, C.J., and COOK, J.