Volkmer v. Curlee

On Rehearing

In a mo-st forceful motion for rehearing, appellant contends that our holding is in conflict with the decision of the Supreme Court in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, the decisions of this Court in Edson v. Perry-Foley Funeral Home, 132 S.W.2d 282, and Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, and with the decision of the Texarkana Court of Civil Appeals in Todd v. LaGrone, 234 S.W.2d 99.

Despite the forceful and analytical argument made by appellant in his motion, we do not agree that our opinion is in conflict with the cited cases. We did not hold, as a matter of law, that appellee was not required to foresee o-r anticipate the possibility that appellant’s vehicle might not stop as required by the stop sign. On the contrary, it was our undertaking to distinguish this case from the cited cases, by pointing out that the appellant, charged though he was with the burden of proving both negligence and causation on this defensive issue of proper lookout, not only failed to offer any proof from which a finding of proximate cause could be made, but by his own testimony which we have referred to, and by which he is bound under any view of the evidence, expressly negatived -the element -of foreseeability essential to a finding of proximate cause. . . •

Neither did we hold that, the finding of the jury was so contrary to the overwhelming preponderance of the evidence as to be clearly wrong, although we construe Hopson v. Gulf Oil Corp., Tex.Sup., 237 S.W.2d 352, to hold that a finding of “no evidence,” necessarily includes a finding that the verdict is against the great weight and preponderance of the evidence. Our reference to such possible finding was made for the purpose of emphasizing that our conclusion was based ttpo-n a finding of no- evidence, as a matter of law, thus calling for an af-firmance of the trial court, and was not *874based upon a fact finding of insufficient evidence, which would have called for a remand of the case. With this clarification of our original opinion, we refuse appellant’s motion for rehearing.