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Huckaby v. A.G. Perry & Son5/2/2000
Justice Grant
OPINION
Rick Huckaby and Jeri Boyd, as the parents of Joshua Huckaby and as the legal representatives of his estate (the Huckabys), appeal from a take-nothing judgment in a wrongful death and survival action. They contend that Joshua Huckaby's death in an automobile accident was caused by the negligence and gross negligence of Lester Lamon and A. G. Perry & Son, Inc. The jury found no negligence. On appeal, the Huckabys contend that
(1) The trial court erred in failing to transfer venue from Gregg County to Montgomery County;
(2) Lamon's negligence and gross negligence by blocking traffic on the southbound lanes of U. S. Highway 59 with his tractor-trailer rig was, as a matter of law, a proximate cause of the accident in question;
(3) Lamon, as a matter of law and from clear and convincing evidence, intentionally, knowingly, or recklessly caused serious bodily injury and death to Joshua Huckaby by the use of the tractor-trailer rig as a deadly weapon;
(4) The jury's failure to find Lamon was negligent, grossly negligent, and intentionally caused the occurrence were against the great weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust;
(5) The trial court erred in not submitting a jury question on negligence per se;
(6) The trial court erred in submitting a jury instruction on sole proximate cause when Lamon's negligence per se, negligence, and gross negligence were proximate causes of the accident in question;
(7) The trial court erred in not finding that Lamon is a vice-principal and statutory employee of A. G. Perry & Son, Inc. and that A. G. Perry & Son, Inc., therefore, is liable for Lamon's negligence and gross negligence which proximately caused the accident in question;
(8) The trial court erred in admitting testimony and exhibits of other accidents at the Patton Village south crossover and other places on U. S. 59; in admitting testimony about acts and omissions of the Texas Department of Transportation, and about highway design, for which it is immune from suit; in allowing unnecessary expert testimony to reconstruct the accident or to establish causation, and expert opinions by unqualified experts; and in not admitting all photographs of the deceased taken immediately after the accident when their bodies were still in the Toyota.
There was evidence showing the following: On November 14, 1996, at dusk, Lester Lamon, using his own tractor unit and pulling a flatbed trailer owned by A. G. Perry & Son, Inc. (Perry), was returning to Lufkin after delivering a load to Tomball, Texas. Lamon used State Highway 242 to connect with U. S. 59. Lamon was aware that northbound traffic out of Houston, specifically at this point along U. S. 59 at dusk, was heavy. Lamon testified that as he descended State Highway 242 to reach its intersection with U. S. 59, he could see extremely heavy northbound traffic on U. S. 59. He intended to cross over the southbound lanes of U. S. 59 and turn left into a northbound lane of U.S. 59. Lamon looked to his left, and seeing southbound traffic far off, he pulled his tractor-trailer rig into the crossover between the divided highway. His flatbed trailer, however, protruded back into the southbound lanes, completely blocking the inside lane and part of the outside lane. He sat at the crossover for about a minute, possibly a little longer, before a Toyota automobile heading south on U. S. 59, as well as another car which is not a part of this lawsuit, came over a rise at the Peach Creek Bridge and struck the trailer. Both the driver, Donovan Johnson, and the passeng
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