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Click here for the full text of this decision FACTS:On May 27, 1996, Stephen Bumstead was driving a Texas Electric Cooperative tractor-trailer rig loaded with utility poles westbound on Highway 175 in East Texas. At approximately 10 p.m., as he crested a hill near the Neches River bridge, Bumstead saw several cows crossing the road. Bumstead hit one cow in the group, killing the cow and sending the carcass into the eastbound lane, approximately 250 feet from the bridge. Bumstead wasn’t able to stop until he had crossed the bridge, about three-tenths of a mile from where the dead cow lay. Bumstead radioed the driver of an approaching truck being driven for Arkansas Freightways. Bumstead also asked that truck driver to call 9-1-1. The truck was able to avoid the cow carcass. Minutes later, May Joyce Brown passed Bumstead’s unlit rig on the side of the road, and unaware of the carcass in the road, ran into it. The force of the impact sent Brown’s car airborne into the westbound lane, where it landed on a truck carrying Kenneth and Mary Dillard and their daughter. Kenneth Dillard was killed. Joe Knight, a retired law enforcement officer, was driving behind the Dillards. He called 9-1-1 at approximately 10:17 p.m. and then again at 10:26. He directed traffic in the area until Jim Cleland, a police officer, arrived on the scene at 10:25, five minutes after being notified of the Brown-Dillard accident, and took over the investigation of that accident. Mary Dillard sued TEC and Bumstead for negligence leading to Kenneth’s death and her and her daughter’s injuries. She said Bumstead’s collision with the cow was the result of TEC’s negligence in having Bumstead carry an overloaded trailer. She also alleged that the collision between Brown and the Dillards was the result of Bumstead’s negligence in failing to warn Brown of the cow’s carcass in the road. At trial, TEC and Bumstead attempted to elicit testimony from Cleland that Bumstead would not have had time to stop before hitting the cows. As a trained accident investigator, Cleland’s opinion was that, even with high-beam headlights, because the cows were dark and Bumstead would have had to interpret what he was seeing, it would have been impossible for Bumstead to stop before hitting the cows. TEC and Bumstead both said Bumstead was driving under the speed limit when he hit the cow. Bumstead acknowledged that normally he could bring the tractor-trailer to a stop within three hundred feet. However, he testified that, on the night in question, he could not stop in time because his truck was top-heavy due to a load of utility poles. Bumstead also said that he did not have a chance to get out of his truck to warn oncoming traffic of the obstruction in the road. As part of the jury charge, the trial court gave an instruction on spoliation of evidence. A jury found for Dillard and awarded her damages. On appeal, TEC and Bumstead raise three issues: 1. The trial court erred in disallowing Cleland’s testimony as an expert witness; 2. The evidence of causation is not legally or factually sufficient; and 3. The trial court’s spoliation jury instruction was inappropriate. HOLDING:Affirmed. As for Cleland’s testimony, the court agrees with the trial court’s assessment that Cleland was qualified to give expert testimony. But the court also agrees that Cleland’s testimony should not have been heard by the jury, because Cleland did not have adequate facts to enable him to form an opinion. For instance, he never talked to Bumstead about the collision with the cow. As to the evidence of causation, the court notes the conflicting evidence and concludes that it was not unreasonable for the jury to determine from the evidence that Bumstead crested the hill traveling too fast for the top-heavy load he was carrying, and that this was the proximate cause of his collision with the cow. Noting the time frame between when Bumstead hit the cow and when Knight arrived at the accident, the court holds that the jury was entitled to believe that Bumstead would have had time to get out of the truck to warn oncoming traffic of the cow’s carcass in the road. The court disagrees with TEC and Bumstead that Bumstead’s conduct did no more than furnish the condition that made the Dillards’ injuries possible. Here, the forces generated by Bumstead’s collision with the cow were still continuing at the time Brown came upon the cow and vaulted into the Dillard pickup. “We conclude that the jury could have determined that Bumstead’s failure to warn Brown about the cow’s carcass obstructing her lane was a cause in fact leading to Kenneth Dillard’s death and the injuries to Mary and Kimberly Dillard. The jury could have further determined Bumstead’s failure to warn was a substantial factor that caused the Brown-Dillard collision and that the harm would not have occurred had Bumstead successfully warned Brown of the dead cow in the roadway. Finally, the jury could have also reasonably determined that Bumstead should have anticipated further collisions because the record reflects that he did so anticipate with respect to the driver of the Arkansas Freightways truck.” Turning next to the spoliation instruction, the court notes that TEC admitted it destroyed Bumstead’s logbook and all of the other documents related to his May 27, 1996, trip. The court further notes that the logbook could have shown the rate of speed Bumstead had been traveling in the 120 miles before he hit the cow, and it could have shown the weight of his load. The court then observes that on Oct. 24, 1996, Dillard’s attorney wrote TEC a letter about the Brown-Dillard collision. TEC not only acknowledged the letter, but responded with another letter on Oct. 30. The evidence thus shows that the correspondence took place within six months of the collision, and knowing of the claim and its severity, TEC nonetheless destroyed Bumstead’s logbook and other documents. OPINION:James T. Worthen, C.J.; Worthen, C.J., Griffith and DeVasto, JJ.

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