                                       NO. 07-01-0476-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     AUGUST 5, 2003
                             ______________________________

                  KENDALL MCWILLIAMS, administrator of the estate of
           LAWANDA MCWILLIAMS, and as next friend of KEITH MCWILLIAMS,
           a minor, and SETH ANDREW MCWILLIAMS, a minor, and TOM NEIL
                       FERGUSON and VIRGINIA LEE FERGUSON,

                                                              Appellants

                                                  v.

            ROBERT JOHN MASTERSON, WERNER ENTERPRISES, INC.,
            DRIVERS MANAGEMENT, INC., PAUL GABEL and KENT GABEL

                                                  Appellees
                          _________________________________

            FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                    NO. 33,389; HON. WILLIAM D. SMITH, PRESIDING
                          _______________________________

                                        OPINION
                            _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

       Kendall McWilliams (McWilliams), administrator of the estate of LaWanda

McWilliams, Deceased, and as next friend of Keith McWilliams, a minor, and Seth Andrew



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
McWilliams, a minor, and Tom Neil Ferguson and Virginia Lee Ferguson have appealed

from a judgment denying them recovery against Robert John Masterson, Werner

Enterprises, Inc., Drivers Management, Inc., Paul Gabel and Kent Gabel2 (collectively

referred to as Masterson). Through a single issue, McWilliams and the other appellants

contend that the trial court erred by instructing the jury on the theories of unavoidable

accident and act of God. As to the former, its submission is no longer permissible under

any circumstance, according to the McWilliams. They continued by also arguing that no

evidence in this specific case justified the submission. As to the act of God instruction, the

trial court allegedly erred because there was no evidence to support its submission. We

overrule the issue and affirm the judgment.

                                            Background

        On April 25, 1997, around 9:00 p.m., McWilliams was returning home in his Jeep

from attending a basketball game in Hereford, Texas. The area through which he drove

was experiencing a winter storm. Some testified that the snow had stopped and the sky

was only misting at the time. Other evidence indicates that the snow may have still been

falling in moderate to heavy amounts. Similarly, one witness testified that the roads were

wet but clear. Others testified that they were slick and had to be traversed slowly and

carefully. Nonetheless, the speed at which McWilliams traveled was 65 mph, a speed

within the posted limit, and with him in the Jeep were his wife, son and son’s friend.




        2
         Paul Gabel and Kent Gabel were dismissed from this appeal in result of an unopposed motion filed
by appellants with this court on September 27, 2002.

                                                   2
      Several miles from the City of Canyon, McWilliams encountered an eighteen

wheeler driven by Masterson. The latter was proceeding down the four-lane highway at

50 mph in the outside or right-hand lane. McWilliams decided to pass. In doing so, he

moved into the inside or left-hand lane and drove around the left side of the eighteen

wheeler. Once the Jeep passed the truck tractor and while attempting to return to the

right-hand lane, McWilliams saw cattle in his path and struck one of the animals. Within

seconds, Masterson’s truck collided with the rear of McWilliams vehicle. As a result of the

event, McWilliams’ wife died. The other occupants of the car suffered injuries.

       McWilliams sued, alleging causes of action in negligence. Trial was to a jury, and

before it retired to deliberate, the trial court instructed it on, among other things, the

doctrines of sudden emergency, unavoidable accident and act of God. Thereafter, the

jurors returned a verdict in favor of the defendants.

                                  Standard of Review

       Whether the trial court erred in submitting a particular instruction to the jury

depends upon whether it abused its discretion. Humphrey v. American Motorists Ins. Co.,

102 S.W.3d 811, 815 (Tex. App.--Eastland 2003, pet. filed). Furthermore, discretion is

abused when the court acts arbitrarily, unreasonably or without reference to guiding

principles of law. Id. Next, one such legal principle allows the trial court to submit an

instruction if there is any support in the evidence for it. Louisiana-Pacific Corp. v.

Knighten, 976 S.W.2d 674, 676 (Tex. 1998); TEX . R. CIV . P. 277 & 278. Finally, in

assessing whether any such evidence exists, we construe the record in a light most




                                            3
favorable to submitting the instruction. Kuykendall v. Doose, 260 S.W.2d 435, 436 (Tex.

Civ. App.--Amarillo 1953, writ ref’d n.r.e.). With this said, we turn to the dispute before us.

       Unavoidable Accident

       As previously mentioned, McWilliams and the other appellants initially question the

trial court’s decision to instruct the jury on the theory of unavoidable accident. Their attack

is twofold. First, they allege that the theory is no longer viable given the Supreme Court’s

opinion in Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995). Then, they aver that the

evidence did not warrant its submission. We disagree with both propositions.

       First, it is true that various members of the Texas Supreme Court criticized the

doctrine in Reinhart. Indeed, it has been the subject of comment for quite some time. See

Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 n.1 (Tex. 1992) (noting some of the

criticisms). Yet, a majority of the Court has not reached any consensus on whether its

submission should be discontinued. Nor has a majority held the instruction improper in

cases involving injury arising from adverse environmental conditions, despite the

reservations expressed. Tanner v. Karnavas, 86 S.W.3d 737, 740-41 (Tex. App.--Dallas

2002, pet denied). So, until a majority of the Texas Supreme Court expressly directs

otherwise, we hold that the doctrine of unavoidable accident remains a viable theory of law

upon which a jury may be instructed, especially when the record contains evidence

indicating that the loss occurred as a result of adverse weather conditions as described

in Hill v. Winn Dixie.

       Next, the concept of unavoidable accident recognizes the truism that some events

or injuries may not be proximately caused by the negligence of anyone. That is, they may


                                              4
result from fate. Hicks v. Brown, 128 S.W.2d 884, 890 (Tex. Civ. App.--Amarillo 1939)

modified on other grounds, 151 S.W.2d 790 (Tex. Comm’n App. 1941, op. adopted)

(stating that “the principal element involved in the term ‘unavoidable accident’ is fate, that

is, the event is the result of the intervention of fatalistic elements and is one for which fate

alone is responsible”). And, via an instruction on unavoidable accident, the jury is so

informed. See Williams v. Viswanathan, 64 S.W.3d 624, 629 (Tex. App.--Amarillo 2001,

no pet.) (stating that “[t]he purpose of an unavoidable accident instruction is to inform the

jury that, although conduct may have been negligent, it must produce the outcome of which

the party complains”); Ordenez v. M.W. Curdy & Co., 984 S.W.2d 264, 271 (Tex. App.--

Houston [1st Dist.] 1998, no pet.) (stating that “[t]he only purpose of the instruction is to

ensure that jurors will understand that they do not necessarily have to find that one or the

other party to the suit was to blame for the occurrence”). Consequently, its submission is

proper when there is evidence that the event was proximately caused by a nonhuman

condition as opposed to the negligence of any party to the event. Hill v. Winn Dixie Texas,

Inc., 849 S.W.2d at 803; Tanner v. Karnavas, 86 S.W.3d at 740-41. Those nonhuman

conditions include acts of mother nature (e.g. snow, ice, sleet, fog, and the like) which

cause hazardous conditions or obstruct one’s view or when someone incapable of

negligence due to age causes the harm. Id.; but see, Williams v. Viswanathan, supra (a

medical malpractice case wherein the condition of the child’s lungs, as opposed to the

negligence of the treating physician, allegedly caused the child’s death). When there is

no evidence that the occurrence was caused by such a condition, instructing the jury on

the matter is generally improper. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d at 803.


                                               5
Conversely, when there is evidence of that ilk, then the trial court may properly submit the

instruction. So, our task at hand is to review the record in a light most favorable to the trial

court’s decision at bar and with an eye towards “ascertaining whether or not there is

presented a theory under which the accident could have happened, notwithstanding [that]

all the parties to the transaction . . . exercised the degree of care required by law.”

Kuykendall v. Doose, 260 S.W.2d at 436.


       Some evidence at bar illustrates that the cattle which McWilliams encountered were

originally within a fenced pasture abutting the highway. Several witnesses testified that

the fencing and gates were built in a manner capable of retaining cattle and were in good

repair prior to the time the bovine escaped. They apparently escaped by trampling upon

a gate. Furthermore, it is undisputed that a winter storm front had moved into the area

prior to the accident. With it came near freezing temperatures, blowing wind, rain, snow,

mist, and possibly ice.     And, it was through these conditions that McWilliams and

Masterson drove their respective vehicles.


       Other evidence illustrates that the same wintry conditions induced the Gabels’ cattle

to move about in an attempt to escape the chill. This is instinctive on their part, according

to a witness. Their “instinct becomes very strong to move and move away and move with

the storm . . . [t]hey will move until they come into an object and they’ll keep pushing and

pressing until they go through that object or over it or fall down and die, one or the other,”

he continued. Another witness stated that cattle do not always look for the weakest point

in a fence when they attempt to escape. “They can get out anywhere they want to,” he


                                               6
opined. “If a cow wants to get out they’re going to get out.” This was “[e]specially [so] in

a snowstorm, if you have got big numbers pushing on anything, they will get out the

strongest point or they can get out the weakest point, just where ever they wad up.” When

asked if it was reasonable for a cattle owner to place someone by the fence during the

storm to monitor the activity of the cattle, a third witness opined that it was not. After cattle

have been checked several times during storm conditions and it was found that the fences

and gates were up and the cattle had “grazing” and water, a “reasonable cattleman” would

not know “that the cattle might break wire on a gate or get out of the pasture.” Nor would

a “reasonable cattleman” be expected to stay with the cattle based upon the chance that

the cattle might escape, he continued. This same witness also stated that “[i]t’s hard to

keep cattle in a storm” and “[w]henever they go to pushing up in a corner, I don’t care what

kind of fence you got . . . if that wind keeps blowing and you’ve got enough number in

there, they’re going to push through about anything.”3 After the cattle left their confines,

some entered onto the adjacent highway. It was one or more of those that McWilliams hit.4


        Next, evidence appears of record illustrating that upon hitting the cattle, McWilliams’

vehicle ventured into the right-hand lane in which Masterson drove. Masterson had begun

to apply his brakes when he first saw the cattle. And, upon seeing the McWilliams’ vehicle

enter his lane, he also attempted to steer his rig to the right. An expert estimated that the



        3
         Another witness described seeing cattle, at one time, push on a six-wire fence with steel posts until
it was about to give way. Rather than allow the cattle to break the fence, the witness opted to cut it in several
places as means of providing egress to the bovine.
        4
         A witness testified that McWilliams could have hit up to three head of cattle, given the evidence
found at the scene and on the vehicle.

                                                       7
range of time that lapsed between McWilliams first hitting the cattle and Masterson striking

McWilliams’ vehicle was from 3.8 to 7.5 seconds. So too did he opine that if the incident

occurred within the 3.8 second range, then Masterson could not have avoided the

McWilliams vehicle. If it occurred closer to the 7.5 second range then “probably, yes” he

could have avoided the accident. When asked about another expert’s conclusion that

Masterson could have prevented the collision, the witness also stated that “I don’t believe

its possible to make conclusions that absolutely that Mr. Masterson could have avoided

the collision.” Counsel also asked the witness if he had an opinion as to the cause of the

accident. The witness answered that he did. He believed the cause of the accident was

the cattle on the highway.


       That the fences and gates were in good repair and capable of holding cattle, that

a winter storm had swallowed the area for some time, that cattle instinctively attempt to

escape such storms by moving with the storm, that the highway lay in the path of the

storm, that little can hold cattle when they opt to escape, that the conditions at the time of

the collision were dark and wintry, that the cattle were on the highway due to the storm and

their instinctive reaction to it, that the cattle could well have escaped regardless of any

precautions which could have been undertaken by the Gabels, that both McWilliams and

Masterson were operating their respective vehicles within applicable traffic regulations,

that McWilliams struck a cow while lawfully attempting to pass Masterson, that seconds

lapsed before Masterson’s eighteen wheeler hit McWilliams’ vehicle, and that Masterson

may not have been able to avoid the collision depending upon how many seconds lapsed

is evidence from which a reasonable jury could deduce that the collision was a trick of fate

                                              8
and not the result of any human being’s negligence. It is some evidence of “a theory under

which the accident could have happened, notwithstanding [that] all the parties to the

transaction . . . exercised the degree of care required by law.” Kuykendall v. Doose, 260

S.W.2d at 436. And, though there was evidence to the contrary, that does not matter.

Again, the standard of review obligates us to view the evidence in a light most favorable

to the submission of the issue. So, evidence that may urge against submission of the

issue is irrelevant.


       In sum, the trial court’s decision to submit the issue enjoyed support in the

evidence. Thus, it did not abuse its discretion when it did so.


       Act of God


       Next, McWilliams and the other appellants questioned the propriety of instructing

the jury about an act of God. They believed that the trial court erred because 1) the

instruction was duplicative of that on unavoidable accident and, thus, amounted to a

comment on the weight of the evidence, and 2) there was no evidence that the incident

was caused directly and exclusively by the violence of nature without human intervention

or cause, “which [was] an evidentiary predicate for the submission . . . .” We disagree.


       We address the last contention first. It has long been the rule that one is not

responsible for injury or loss caused by an act of God. Gulf, C. & S. F. Ry Co. v. Texas

Star Flour Mills, 143 S.W. 1179, 1182 (Tex. Civ. App.–Galveston 1912, no writ).

Furthermore, an event may be considered an act of God when it is occasioned exclusively

by the violence of nature. Travelers Ins. Co. v. Williams, 378 S.W.2d 110, 113 (Tex. Civ.

                                            9
App.–Amarillo 1964, writ ref’d n.r.e.); Gulf, C. & S. F. Ry Co. v. Texas Star Flour Mills, 143

S.W. at 1182. And, for one to be insulated from liability, it must be shown that 1) the loss

was due directly and exclusively to an act of nature and without human intervention, and

2) no amount of foresight or care which could have been reasonably required of the

defendant could have prevented the injury. Id. Furthermore, the act of nature must be

unusual or unprecedented. Yet, it need not be the sole, greatest, or harshest violent act

ever experienced. Gulf, C. & S. F. Ry Co. v. Texas Star Flour Mills, 143 S.W. at 1182.

Instead, it need only be so unusual that it could not have been reasonably expected or

provided against. Id.


       Turning to the record before us we again encounter that evidence which supported

the trial court’s decision to instruct the jury on unavoidable accident, e.g. the time of night,

the presence of a winter storm, the cattle’s instinctive reaction to the storm, their penchant

to escape irrespective of the quality of the fence and gate in which they were confined, the

lawful operation by McWilliams and Masterson of their respective vehicles at the time, the

inability of Masterson to avoid the accident depending upon the number of seconds that

transpired, and the like. To it we add the evidence that the winter storm occurred on the

25th day of April, 1997. Furthermore, a local meteorologist testified that as much as 12

inches of snow may have fallen in the area and that it may have been snowing at a

moderate to heavy rate at the time of the accident. So too did he state that the time of year

at which the storm occurred was shocking or surprising to weathermen, though through the

years five other storms had been as late or later. Apparently, at least one weatherman

was surprised “that . . . this particular storm happened so late and was as strong as it was.”

                                              10
Moreover, by the time this storm entered the area, the cattle had slicked off or shed their

natural winter hair. This is of import because had they had their winter coat, they could

have better fared the storm. The foregoing constitutes some evidence of a violent act of

nature directly and exclusively, without human intervention, causing loss and which act

one could not reasonably foresee or prevent its effects. Thus, we conclude that the court’s

decision to submit the instruction about an act of God was supported by the evidence.


       Nevertheless, McWilliams argues that human agency or intervention was indeed

involved. The human agency contemplated was that represented by Masterson driving the

truck and ultimately striking McWilliams with it. True, a vehicle operated by a human

struck McWilliams. Yet, what is meant by allusion to the absence of human intervention

is not the absence of all human involvement but the absence of human negligence

proximately causing the injury. That this is true is exemplified by the opinion in Luther

Transfer & Storage, Inc. v. Walton, 296 S.W.2d 750 (Tex. 1956). There, the Texas

Supreme Court declared that “for a defendant to be relieved of liability for an

unprecedented flood, there must be no negligence of the defendant concurring with the

act of God to cause the damage resulting.” Id. at 753; accord, Macedonia Baptist Church

v. Gibson, 833 S.W.2d 557, 560 (Tex. App.–Texarkana 1992, writ denied) (holding that the

injuries were not caused by an act of God since the lightning was channeled through an

improperly installed lightning protection system). So, that a human may have been

involved does not matter as long as his negligence, if any, did not also cause the injury.

And, as previously discussed, evidence appears of record which reasonably permitted the

factfinder to conclude (assuming it chose to believe it) that neither the Gabels nor

                                            11
Masterson were negligent or, if negligent, their negligence was not a concurring or

proximate cause of the loss.


        So too does McWilliams question the propriety of the instruction because the

weather purportedly was not a direct cause of Masterson colliding with McWilliams. He

believes that the effect of the weather “ended when the cattle went through the gate.” At

that point, their own instincts took over.        Yet, McWilliams cites us to no authority

explaining what constitutes a direct cause. Nor does he argue that it is something other

than the cause implicit in the idea of proximate cause. Moreover, we see no reason to

conclude that the nexus involved in each should be different. So, we will treat them as the

same.


        Next, to satisfy the causal element of proximate cause, it need only be a substantial

factor in bringing about the harm. Southwest Key Prog., Inc. v. Gil-Perez, 81 S.W.3d 269,

274 (Tex. 2002). Furthermore, to be a substantial factor, it is not necessary that the act

giving rise to the injury be the one nearest the injury. Atchison v. Texas & P Ry., 186

S.W.2d 228, 231 (Tex. 1945). Nor must it be the only act involved. Rather, it can be one

of several events in a natural and continuous sequence of events which produces a

particular result and without which the result would not have occurred. See Lear Siegler,

Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (stating that conduct is a cause if in a

natural and continuous sequence it produces an event and without it the event would not

have occurred). Stated differently, if it “set in motion a natural and unbroken chain of




                                             12
events that led directly and proximately . . .” to a particular result, then the conduct or act

legally caused the result. Hart v. VanZandt, 399 S.W.2d 791, 793 (Tex. 1965).


       Here, evidence appeared of record that the unusual winter storm not only triggered

the instinctive nature of the cattle but also combined with that instinct to herd the cattle in

the direction of the highway. According to at least one witness, cattle instinctively move

with a storm. For instance, if a storm blows from the north to the south, the cattle will head

south with the storm. Thus, a storm can be compared to a herdsman leading the cattle

along in its path. And, at bar, the storm was proceeding in a direction towards (and

consequently driving the cattle towards) the highway on which McWilliams and Masterson

drove, or at least some evidence of record so indicates.


       Next, no one could reasonably deny that if a herdsman drove cattle onto a roadway

and a car hit one of the herd, then the herdsman’s conduct was a substantial factor in

bringing about the collision. We see no reason to reach a different conclusion when an

act of God substitutes itself as the herdsman. In both situations the cattle move per the

direction of the herdsman. And, if those directions lead one or more of the herd onto a

roadway, then a factfinder may reasonably deduce that the directions of the herdsman

constituted a substantial factor in bringing about the presence of the cattle onto the

roadway. In sum, there existed some evidence of a direct causal link, which evidence was

sufficient to warrant the instruction given by the trial court.


       Finally, McWilliams posits that the jury should not have been instructed about an

act of God since the instruction, when coupled with that involving unavoidable accident,


                                              13
constituted a comment on the weight of the evidence and nudged the jurors towards a

particular result.5 Furthermore, he cites our opinion in Williams v. Viswanathan as support

for the proposition. We disagree. Though an argument akin to that at bar was asserted

in Viswanathan, nowhere in that opinion did we accept the proposition. Instead, we held

that because evidence supported the submission of each instruction and the appellant

provided us with no authority supporting the suggestion “that the submission of both issues

had a cumulative erroneous effect,” the trial court did not err by instructing the jury on both

theories. Williams v. Viswanathan, 64 S.W.3d at 630-31. That is the situation here.

Submission of each instruction was supported by the evidence, and McWilliams cited us

to no authority holding that submission of both instructions constituted an unwarranted

comment on the evidence. So, our ruling in Viswanathan is no less applicable here.


        In conclusion, the trial court did not err by instructing the jury about unavoidable

accident and act of God. We overrule McWilliams’ sole issue and affirm the judgment of

the trial court.


                                                          Brian Quinn
                                                            Justice




        5
        The comment, according to McWilliams, was the suggestion that the jury should relieve the
defendants of liability because the availability of all these theories indicated that the defendants did not
cause the injury.

                                                    14
