Estate of Clifton v. Southern Pacific Transportation Co.

I respectfully dissent.

The majority has concluded that Boze-man was the driver as a matter of law. Special Issue 14 was phrased as follows:

Was James C. Bozeman the driver of the van at the time of the collision in question?

Answer “Yes” or “no”.

Answer: NO

This was a defensive issue; the railroad had the burden of proving by a preponderance of the evidence that Bozeman was the driver. Allied Finance Co. v. Gammill, 440 S.W.2d 897, 900 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n.r.e.). The jury had the opportunity to observe the witnesses and to weigh their testimony. The witness Blount testified…