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Torts No. 12-01-00258-CV, 4/16/2003. Click here for the full text of this decision FACTS: Texas Electric Cooperative and Stephen Paul Bumstead appeal the trial court’s judgment entered following a jury verdict in favor of Mary R. Dillard, individually and as community survivor of the estate of Kenneth Lewis Dillard, deceased, and Mary R. Dillard, a/n/f for Kimberly Dillard, a minor. On May 27, 1996, Bumstead was driving a TEC truck loaded with utility poles from Jasper to Muenster. At approximately 10 p.m., while traveling westbound on U.S. Highway 175 between Cuney and the Neches River bridge, Bumstead hit one of approximately nine black cows wandering about on the highway. Only minutes later, Mae Joyce Brown, who was driving eastbound on US-175, crossed the bridge and immediately encountered the cow’s carcass. Brown’s vehicle collided with the carcass, was vaulted through the air and struck the Dillard pickup truck, which was traveling westbound on US-175. Kenneth Dillard, who was an occupant in the pickup truck, was killed as a result of the collision with Brown’s vehicle. The Dillards filed suit against TEC and Bumstead alleging that Bumstead’s negligence was the cause of Kenneth Dillard’s death. TEC and Bumstead answered the suit and pleaded the affirmative defenses of sole proximate cause and unavoidable accident. The matter proceeded to jury trial. During the charge conference, TEC requested that the trial court include instructions on sole proximate cause and unavoidable accident as part of its negligence question. The trial court submitted the unavoidable accident instruction, but refused to submit the sole proximate cause instruction. Ultimately, the jury found that Bumstead’s negligence led to the death of Kenneth Dillard. The trial court entered judgment against TEC. HOLDING: Reversed and remanded. Dillard argues that even if there was sufficient evidence to support the sole proximate cause instruction, such an instruction was unnecessary because the court submitted an unavoidable accident instruction. An unavoidable accident is an event not proximately caused by the negligence of any party to it. Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995). The Texas Supreme Court has further explained that an unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Hill v. Winn Dixie Texas Inc., 849 S.W.2d 802 (Tex. 1993). Here, Dillard contends that the cows were a condition, reasoning that because the jury answered “yes” to the question of whether Bumstead was negligent, it must have determined that the situation did not amount to an unavoidable accident. However, it is also reasonable that the jury could have determined that human conduct other than that of Bumstead triggered the series of events that ultimately caused Kenneth Dillard’s death. Indeed, from the evidence presented to it, the jury could have determined that the owner who placed the tags in the ears of the cows could have been, by permitting the cows to wander onto the highway, the sole proximate cause of the death of Kenneth Dillard. TEC was entitled to have the jury consider whether the actions of the unidentified owner set in motion the sequence of events leading to the death of Kenneth Dillard. It is good practice to explain to the jury each litigant’s theory of the case and then let the jury choose which theory to accept. Perez v. Weingarten Realty Investors, 881 S.W.2d 490 (Tex. App. – San Antonio, pet. denied) (Peeples, J., concurring). A sole proximate cause instruction would have permitted the jury in the instant case to fully consider the matter in making its determination. The court holds that the trial court erred by refusing to submit the sole proximate cause instruction requested by TEC. By pleading and presenting evidence that an unidentified rancher allowed his cows to wander onto US-175 on the night in question, TEC could have reasonably argued that the rancher’s conduct set off the chain of events which ultimately caused the death of Kenneth Dillard. However, absent a sole proximate cause instruction in the charge, the first human conduct in the causal chain that the jury was permitted to consider was that of Bumstead. Thus, if the jury concluded that it was human conduct that ultimately caused Kenneth Dillard’s death, then it had no alternative but to find that causal chain began with Bumstead’s actions. On the other hand, had the jury been given a sole proximate cause instruction, it could have considered the potential ramifications of the unidentified owner’s conduct as well. The Texas Supreme Court considered a similar circumstance involving sole proximate cause in Bel-Ton Elec. Serv. Inc. v. Pickle, 915 S.W.2d 480 (Tex. 1996). In Pickle, Bel-Ton Electric Inc., whom the jury found to be negligent, was not permitted to have its sole proximate cause issue included in the court’s charge despite the fact that Bel-Ton had presented evidence at trial raising the issue of sole proximate cause. The supreme court determined that such an issue was critical to Bel-Ton’s defense and that the trial court’s refusal to submit the sole proximate cause instruction was reversible error. Likewise, this court holds that the sole proximate cause issue was critical to TEC’s defense in the instant case and that the trial court’s refusal to submit such an instruction was reversible error. OPINION: Worthen, C.J.; Worthen, C.J. and Griffith, J.

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