The court further stated that it was not necessary for plaintiff to identify the specific engineering or structural defect. See also Sharp v. Chrysler Corp., Tex. Civ.App. 1968, 432 S.W.2d 131 (writ ref'd n.r.e.); Ford Motor Co. v. Grimes, Tex.Civ.App. 1966, 408 S.W.2d 313 (writ ref'd); Sam White Oldsmobile v. Jones Apothecary, Inc., Tex.Civ.App. 1960, 337 S.W.2d 834 (writ ref'd n.r.e.). This Court upheld a liability judgment based on circumstantial evidence in the Texas-based diversity case of Dement v. Olin-Mathieson Chemical Corp., 5th Cir. 1960, 282 F.2d 76.
Dement v. Olin-Mathieson Chemical Corp., 5 Cir., 1960, 282 F.2d 76, 81. Circumstantial evidence may be used, and may often be a decisive factor on critical indispensable issues, in a variety of situations. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., Tex.Civ.App. 1960, 337 S.W.2d 834 (error ref. n.r.e.); Roberts v. Texas Pacific R. Co., 1944, 142 Tex. 550, 180 S.W.2d 330; International G.N.R. v. Finger, Tex.Civ.App. 1929, 16 S.W.2d 132 (error dismissed); Comet Motor Freight Lines v. Holmel, Tex.Civ.App. 1943, 175 S.W.2d 464 (error ref. w.o.m.); Beaumont Iron Works v. Martin, Tex.Civ.App. 1945, 190 S.W.2d 491 (error ref. w.o.m.); McCray v. Galveston H. S.A. Ry. Co., 1896, 89 Tex. 168, 34 S.W. 95. The jury must have concluded that three times is too much, once perhaps, twice maybe, but certainly no for the third time.
The Court found support for the verdict and judgment against the railroad, saying: 'The accident was such as in the ordinary course of things would not have happened if defendant had used ordinary care with respect to matters alleged.' Cf. Simmons v. Terrell Electric Light Co., 12 S.W.2d 1011 (Tex.Comm.App. 1929); Roberts v. Texas and P. Ry. Co., 142 Tex. 550, 180 S.W.2d 330 (1944); Sam, White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex.Civ.App. 1960, writ ref., n.r.e.); and Beaumont Iron Works Co. v. Martin, 190 S.W.2d 491 (Tex.Civ.App. 1945, writ ref., w.o.m.). The principle that inferences of negligence arise from unexpected and unexplained occurrences is also recognized in federal jurisdictions.
Moreover, the general rule is that the burden of proving a garageman's breach of duty in the repair of a motor vehicle rests upon one who claims that the repairs were defectively made. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex. 1960); Kettle v. R.J. Loock Co., 199 Md. 95, 85 A.2d 459 (1952); Carley v. Allen, 31 Wn.2d 730, 198 P.2d 827 (1948); Pugh v. Mackie Motors Co., 189 N.W. 674 (Iowa 1922). Appellant's aforesaid assignment is without merit.
00 in exemplary damages because it was clear that the jury in reaching its verdict ignored the undisputed facts and failed to appreciate and fully apply the testimony as to the question of appellant's liability. The court of appeals will not presume that the jury, in answering special issues submitted to them, ignored evidence before them. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., et al., 337 S.W.2d 834, 840 (Tex.Civ.App. — Houston 1960, writ ref'd n.r.e.). Points of error numbers 3, 4, and 5 are overruled. In cross-point number 3, appellee alleges the trial court erred in granting appellant's motion to disregard the answers to special issues 1 thru 5. Appellant's Motion to Disregard Jury Findings with respect to special issues 1 thru 5 reads in pertinent part:
The breach of an implied warranty relates to the condition of the property at the time of its actual and physical delivery to the purchaser. See White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex.Civ.App. — Houston 1960, writ ref'd n.r.e.). Applying the above discussed principles to the present case, Page and Wirtz is required to show that it sought or acquired by purchase the Pringle switch on or after 1 September 1975 and that the breach of implied warranty occurred on or after that date.
Negligence and proximate cause, like any other ultimate fact, may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Davis v. Anderson, (Texarkana, Tex.Civ.App.) NWH, 501 S.W.2d 459; East Texas Motor Freight Lines, Inc. v. Neal, (Texarkana, Tex.Civ.App.) NRE, 443 S.W.2d 318; Sam White Oldsmobile Co. v. Jones Apothecary, Inc., (1 Houston, Tex.Civ.App.) NRE, 337 S.W.2d 834; Bock v. Fellman Dry Goods Co., Tex.Com.App., Adopted, 212 S.W. 635. Defendant's contentions supra are overruled.
For discussion of these controlling requirements see Pittsburg Coca-Cola Bottling Works v. Ponder, supra, and Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008 (1952). The insufficiency of proof in these areas distinguish this case from Ford Motor Co. v. Grimes, 408 S.W.2d 313 (Tex.Civ.App., Eastland 1966, wr. dism'd); Ford Motor Co. v. Lemieux Lumber Co., Inc., 418 S.W.2d 909 (Tex.Civ.App., Beaumont 1967, no writ); Barnett v. Ford Motor Co., 463 S.W.2d 33 (Tex.Civ.App., Waco 1970, no writ). Dicta in Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex.Civ.App., Houston 1960, wr. ref'd, n.r.e.) appears to support the view expressed here. Under the record made, the trial judge's action was not erroneous. The judgment of the trial court is affirmed.
The law in this instance is clear that in order for there to be a duty to repair, there must be some evidence of a repairable defect that was known, or in the exercise of ordinary care should have been known, to the reasonably prudent repairman. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834, 839, (Tex.Civ.App. 1960), writ ref., n.r.e. And see Westbrook v. Watts, 268 S.W.2d 694, (Tex.Civ.App. 1954), writ ref., n.r.e. No testimony was ever offered by plaintiff to show that the actions of the defendants were other than those of ordinarily prudent repairmen. The only evidence was to the effect that some five or six other facilities of like service did not or were unable to satisfy plaintiff's complaints.
The plaintiff is not required to exclude an appreciable chance that the event might have occurred in some other way. Expressed otherwise, a conclusion of causal connection may be inferred by a balance of probabilities. Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.); Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834, 839 (Tex.Civ.App.), writ ref., n.r.e.; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797; Burlington-Rock Island Ry. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723. The question depends upon the actual probabilities and the reliability of the inferences from the evidence. Viewing the evidence most favorable to the plaintiff-appellant, and disregarding all the unfavorable testimony and inferences, it is established in the record and by competent evidence that the vehicle in question had been driven only 1,600 miles; that the brake drum had not been invaded or taken apart prior to the occurrence; that the damage to the internal parts did not appear to have been externally caused; that the immediate cause of the brake failure was the complete displacement or dislodgement of the adjusting unit; that a partial disengagement had preceded the complete failure of the adjusting unit; that the previous accident which occurred while Tipton was operating the Dodge Dart was not calculated to cause internal damage;