OPINION
A jury found the State Department of Highways and Public Transportation liable for Calvin Kitchen's death and for Charles Richards's injuries. The men were involved in an auto accident which occurred when the appellees' truck encountered ice *Page 507 on the highway, slid into oncoming traffic, and collided with another vehicle. The State raises seven points of error. We affirm.
Kitchen and Richards (hereinafter referred to as "Plaintiffs") claimed that an icy bridge and a closed warning sign were defects under the Texas Tort Claims Act, and they presented jury questions concerning negligent maintenance of the highway, and the State's failure to warn of or to make safe the dangerous conditions on the highway. The State complains that the jury questions were erroneously submitted and that no cause of action lies against the State on the plaintiffs' theories. This appeal requires us to determine the scope of sovereign immunity under the Texas Tort Claims Act. TEX.CIV.PRAC. REM.CODE ANN. § 101.001 et seq. (Vernon 1986).
Calvin Kitchen and Charles Richards worked for the same construction company. They commuted together to their job assignments during the week and lived in their respective homes in the country on weekends. During the first week of January, 1986, the two men had been unable to work due to inclement weather. Anticipating better conditions by Friday afternoon, they started towards their assignment in San Marcos early Friday morning. As they drove over a bridge outside Hochheim, their truck skidded out of control on a patch of ice and collided with another vehicle, killing Kitchen and seriously wounding Richards. Testimony showed that Kitchen was a safe driver and was thought to habitually heed traffic control signals.
A typical Highway Department sign was posted before the bridge. The sign could be folded shut in good weather, or opened to display a warning which said "Watch for Ice on Bridge." Flashing lights operated on the sign when it was opened. The sign was closed and displayed no warning when the accident occurred. Highway Department employees testified that the signs had been open the previous day, but they shut the signs because they did not anticipate further conditions conducive to ice formation. The next morning (the morning of the accident), the State dispatched crews to reopen the signs. Plaintiffs established that the previous evening's weather reports predicted precipitation and temperatures in the low thirties. The State's employees agreed that the signs should be opened under such conditions. The jury found negligence in the State's failure to warn or make safe; they attributed no negligence to Kitchen.
We first address appellant's second and third points of error. By these points, appellants complain generally that the existence of a special defect is a question of law for the court rather than a fact question for the jury.
Point of error two claims error by the trial court in submitting jury questions 1(D) and 1(E), because "the determination of the existence of a special defect is a question of law for the court and is not determined by the type of knowledge a defendant may have." Question 1 consisted of 14 parts numbered (A) through (N), each part inquiring of some factual condition of the roadway or sign in question or of the notice, knowledge, conduct, or lack of conduct of the appellant. The complained-of questions inquire (D) if the defendant had actual notice of the dangerous condition of the highway prior to the accident and (E) if the defendant should have known of such condition prior to the accident. The jury answered "no" and "yes" respectively to these questions.
Appellant concludes that asking these two questions and entering judgment based on these answers, before determining if the ice on the highway was a special defect, was reversible error because the trial court allowed the jury to determine a question of law. We disagree.
Appellees and appellant agreed throughout the trial and in these proceedings that whether a condition is a "premises" or "special" defect within the meaning of the Tort Claims Act is a question of law which the court must decide. We fail to find anything in either of the questions asked or the answers that constitutes a finding of the type of defect that existed. Appellant contends that the trial court is required to make a finding of the nature of *Page 508 the defect prior to submitting the case to the jury. We find no such requirement in the statute or in any of the case law. In fact, there does not appear to be a requirement that the trial judge ever make a "declaration" of the type of defect existing.
The judgment of the court simply states that "It appearing to the Court that the verdict of the jury was for the Plaintiffs . . ., Judgment should be rendered upon the verdict for the Plaintiffs. . . ." Error is harmless if jury findings are sufficient to support the judgment and the correct law is applied.
The real question in this case is not whether the trial judge declared that the condition of the highway was a special defect, but whether, in law, the condition was a "premises" or a "special" defect. If the latter, the judgment should be affirmed.
We hold that the condition of the roadway on the occasion in question constituted a special defect within the meaning of s 101.022 of the Texas Tort Claims Act. Tex.Civ.Prac. Rem. Code Ann. § 101.022 (Vernon 1986). While the statute expressly mentions "excavations or roadway obstruction" these two examples are not exclusive and do not exhaust the class.County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). The most recent pronouncement of the Texas Supreme Court on this subject gives us guidance. State Dep't. ofHighways and Pub. Transp. v. Payne, 34 S.Ct.J. 793, 1991 WL 175208 (Sept. 11, 1991) (motion for rehearing pending). The Court in Payne observed, "The examples set forth in the statute itself all present an unexpected and unusual danger to ordinary users of roadways." Id. at 795. In the footnote following this statement, the court points out a number of cases where special defects have been recognized even though they do not occur on the surface of the road. The Court points out that the common thread in these cases is whether the condition poses a threat to the ordinary users of a particular roadway.
The conditions in this case appear much stronger than slick, muddy conditions or the water on the road as mentioned inState v. McBride, 601 S.W.2d 552 (Tex.Civ.App. — Waco 1980, writ ref'd n.r.e.) and Miranda v. State,591 S.W.2d 568 (Tex.Civ.App. — El Paso 1979, no writ). Here the State had, in effect, acknowledged that ice on the road was a dangerous condition and posed a threat to ordinary users of the road by installing a sign and warning light, both to be activated when there was expectation of the forming of ice on the roadway. The failure to activate the sign under appropriate circumstances, when users of the highway knew of its presence and function, further aggravated the condition. The fact that the icy condition was not created by the government is not material. Eaton, 573 S.W.2d at 179. We hold that the trial judge presumably correctly found that the condition of the roadway on the occasion in question constituted a "special" defect and that the verdict was with the plaintiffs, as the court found, and that this was not error. Therefore, we overrule points of error two and three.
By its first point of error, appellant complains of irreconcilable and fatal conflict between the answers to Jury Questions 1(F) and 1(H) and the answer to Jury Question 1(L). With regard to 1(F) and 1(H), the jury answered affirmatively that appellant was negligent in failing to make safe the dangerous condition of the road (i.e., ice on the bridge), and in failing to warn of the condition. However, by 1(L) the jury did not find that the appellant failed to correct the condition of the warning sign within a reasonable time after actual notice. In reviewing the jury findings for conflict, the threshold question is whether the findings are about the same material fact. A court may not strike down jury answers on the ground of conflict if there is any reasonable basis upon which they can be reconciled. Bender v. Southern PacificTransportation Co., 600 S.W.2d 257, 260 (Tex. 1980);Little Rock Manufacturing Co. v. Dunn, 148 Tex. 197,222 S.W.2d 985, 989 (1949).
Appellant argues that the jury's finding that it did not fail to correct the condition of the warning sign (i.e., open the sign so that the ice warning would be displayed) within a reasonable time after actual notice *Page 509 of the dangerous condition conflicts with a finding that appellant negligently failed to warn of the dangerous condition. However, we find no conflict, since these answers are consistent with the appellant having constructive, as opposed to actual, knowledge of the dangerous condition, as found in Jury Questions 1(D) and 1(E). Assuming that appellant "should have known" of the dangerous condition and displayed the warning sign in question, it nevertheless may not have had "actual notice" of the condition within a reasonable time to correct the sign. Appellant's first point of error is overruled.
By its seventh point of error, appellant complains that the trial court's definition of proximate cause constituted a comment on the weight of the evidence, in violation of Tex.R.Civ.P. 277. Specifically appellant complains that the charge on proximate cause defines person to include "a natural person and The State Department of Highways and Public Transportation," and that this had the effect of singling out appellant by name as a comment on the weight of the evidence. We fail to see how this definition could be construed as a comment on the weight of the evidence. Merely defining "person" to include the appellant did not in any way suggest what this legal "person" is or is not liable for, but merely allowed the jury to place this particular party, The State Department of Highways and Public Transportation, within the appropriate framework of the questions and definitions properly before them. Appellant's seventh point of error is overruled.
Considering that we here affirm appellees' recovery based on the jury's findings regarding failure to warn of a special defect, the remaining points of error pertain to alternate theories of liability which are unnecessary to support appellees' present recovery. Therefore, the remaining points are not dispositive and we do not address them. See Tex.R.App.P. 90(a).
We AFFIRM the judgment of the trial court.
Dissenting Opinion by NYE, C.J., joined by KENNEDY and GERALD T. BISSETT1 (Assigned), JJ.