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Dillard v. Texas Electric Cooperative2/11/2005
Argued on April 7, 2004
In this personal injury and wrongful death case, we must decide whether the trial court abused its discretion in refusing to submit one of two different instructions on the defendants' inferential rebuttal defenses. An inferential rebuttal defense operates to rebut an essential element of the plaintiff's case by proof of other facts. For example, the defendants in this case contended at trial that the fatal auto accident in issue was not caused by their negligence, but rather by the presence of cattle on the roadway or by the conduct of the cattle's owner who allowed them to be there. The jury rejected these defenses and returned a verdict for the plaintiffs, upon which the trial court rendered judgment. The court of appeals, however, reversed and remanded the case for a new trial, concluding that the jury needed more than one inferential rebuttal instruction for a full consideration of the case. ___ S.W.3d ___. Because we conclude that the trial court's instruction sufficiently informed the jury about the defendants' inferential rebuttal defenses, we reverse the court of appeals' judgment and remand the case for that court to consider other issues that the defendants raised but the court did not address.
I.
Texas Electric Cooperative (TEC) of Jasper, Texas, manufactures and sells utility poles. On the evening of May 27, 1996, TEC dispatched Stephen Bumstead to deliver a load of poles to Muenster, Texas, 304 miles away. About 120 miles out, traveling west on U.S. Highway 175 at about ten o'clock at night, Bumstead crested a hill and saw several dark cows on the road. Unable to stop his loaded tractor-trailer rig quickly enough without jeopardizing control, Bumstead collided with one or more of the cows, leaving one dead in the eastbound lane about 250 feet from a bridge crossing the Neches River. Maintaining control, Bumstead proceeded over the bridge and parked his truck on the shoulder about 1,500 feet beyond the dead cow. Bumstead immediately radioed an approaching trucker to warn him of the hazard ahead. Learning that the trucker had a cell phone, Bumstead requested that he call 911 to report the accident. Bumstead turned off his headlights and waited in his truck for help to arrive.
A few minutes later, Mae Joyce Brown drove past Bumstead's rig on to the bridge heading east on Highway 175. At the same time, the Dillards were approaching the bridge from the east in the unobstructed westbound lane. Crossing the bridge, Brown saw the approaching headlights of the Dillards' vehicle but did not see the dead cow in her lane of traffic. When she hit the cow, her car was thrown into the westbound lane and into the Dillards' vehicle, killing Kenneth Dillard and injuring his wife and daughter. Brown, too, was injured in the accident.
The Dillards sued TEC and Bumstead for negligence, seeking damages for their personal injuries and for Kenneth's death. Brown intervened in the suit. The Dillards and Brown subsequently joined a number of surrounding landowners as defendants, but these claims were dismissed or abandoned before trial because the cattle involved in the accident could not be traced to any of these defendants. Also before trial, Brown settled her claims against TEC and Bumstead, leaving only the Dillards' claims for the jury.
At trial, the Dillards contended that TEC and Bumstead were negligent in operating an overloaded and top-heavy truck that could not be safely stopped when it encountered obstacles in the road, and in failing to warn approaching motorists, like Brown, of the hazard that the first accident created. TEC responded that its driver had insufficient time to take evasive action and thus could not
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