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Campbell v. Morrison

Court of Appeals of Texas, Twelfth District, Tyler

April 12, 2017


         Appeal from the 415th District Court of Parker County, Texas (Tr.Ct.No. CV12-1207)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Brian Hoyle Justice.

         James Campbell appeals from a take-nothing judgment in his lawsuit against James Bradley Morrison. In one issue, Campbell challenges the sufficiency of the evidence. We affirm.


         Campbell sued Morrison for negligence arising out of a vehicle collision. Morrison testified that, on the day of the collision, he was traveling in the left lane behind two other vehicles and was approaching a construction zone during rush hour traffic. He admitted not considering the recommended following distance and that there was no room for other vehicles to merge in front of him. When an eighteen-wheeler in front of the two vehicles stopped, traffic came to an immediate standstill and the two vehicles veered left into the grassy median. Morrison applied his truck's brakes and followed the two other vehicles into the median. He testified that traffic was very "tight" and busy and entering the right lane was not an option. When asked why he did not stop on the roadway, Morrison explained that

It was so rapid what took place, it was just an instantaneous thought….I can't tell you an exact reason, but, maybe, I was assuming something was in the road right in front of them. I did see the truck, the eighteen-wheeler, up there. I did not want to chance contacting the back end of a truck.

         He admitted veering left solely because the two other vehicles did so, but that he fully applied his brakes as he left the roadway and he felt he had no choice but to take evasive action in order to avoid a collision. He did not look left before following the other vehicles, but testified that he would have veered left even if he had looked. He testified that he was following the "normal speed of the traffic" on the day of the collision.

         When Morrison veered left, he saw Campbell's motorcycle in the driver's side mirror. The motorcycle was approximately one car length behind him. Morrison testified that Campbell was on the shoulder. He believed that Campbell was traveling "rapidly" and that it was illegal to use the shoulder to overtake other vehicles. Once the motorcycle hit the grass, Campbell lost control. Morrison testified that Campbell collided with the driver's side of his truck. He did not believe that, at the time of impact, the rear of his truck had cleared the shoulder. He insisted that Campbell was not in his path when he veered left.

         Campbell testified that, before the collision, he was traveling in the far right lane. When he saw orange traffic cones narrowing the three lanes into two and slowing traffic, he merged into the middle lane. Another vehicle almost struck him when merging, which prompted Campbell to enter the left lane. He agreed that traffic was congested. Campbell testified that he saw brake lights ahead of him and noticed two vehicles "barreling fast" behind him. Because he could not see around the van in front him, and because he was afraid of being struck, he pulled into the grassy median. He testified that the soft dirt slowed the motorcycle. At this point, he was traveling above forty miles per hour and was passing traffic stopped on the highway. He continued to slow down as other vehicles entered the median. He was approximately thirty feet from Morrison's truck when it entered the median. He testified that the truck entered at an angle, and he could not see the back of the truck. He was traveling under thirty miles per hour at the time of the collision.

         Campbell denied using the median to travel as far as he could before reentering the highway. He acknowledged that, during his deposition, he answered "yes" when asked if he had intended to drive as far as he could before being stopped. At trial, he explained that he intended to drive in the median until he could safely reenter the highway because it was not safe to reenter as long as vehicles were stopped behind each other. He described his actions as justified by an emergency situation.

          Campbell testified that he accepts some responsibility for the collision because, when on the road, a motorcyclist rides as though "everybody on the road is going to kill you." When he entered the median, however, he was unprepared because he believed he was safe. Had he continued being on guard, he would have braked as soon as he saw Morrison's truck and "hit the dirt" to avoid contacting the truck. Campbell also believed that Morrison was responsible because when a driver pulls off the road, as Morrison did, he should know everything going on around him and pull off safely. He classified himself as only ten to fifteen percent responsible.

         Morrison, however, denied turning into Campbell's motorcycle or causing the collision. He agreed that a collision occurred, but he did not believe that he, as opposed to "previous actions, " caused the collision to occur. He testified that the responding officer told him that Campbell was at fault. According to the police report, Campbell engaged in faulty evasive action and following too closely. The officer did not identify any contributing factors caused by Morrison.

         The jury found that Campbell, but not Morrison, proximately caused the collision. The jury awarded zero ...

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