Escamilla v. Garcia

653 S.W.2d 58, 1983 Tex. App. LEXIS 4323

• Court: Court of Appeals of Texas
• Decided: April 27, 1983
• Docket: 16690
• Status: Published

Opinions

OPINION

DIAL, Justice.

Appellant, Jo Ann Escamilla, appeals from a judgment for personal injury damages arising out of a two-vehicle collision. The judgment was rendered jointly and severally against appellant and Manuel Rangel Solis, the driver of the vehicle in which appellant was riding at the time of the collision.

On February 18, 1977, appellant was a front-seat passenger in Solis’ car when Solis turned across a lane of oncoming traffic into the path of the ear driven by appellee, Jesus Garcia. A collision ensued and appellant was taken to the hospital for treatment.

At the trial, a jury found that the collision was proximately caused by the negligence of both appellant and Solis, with 80% of such negligence being attributed to Solis and 20% being attributed to appellant. The jury awarded appellee $144,450.00 to compensate for past and future medical expenses, past and future pain and anguish, past loss of earnings, and future loss of earning capacity.

Appellant presents 12 points of error. The first six are based upon the assertion that there was insufficient evidence, or, alternatively, no evidence, upon which the jury could conclude that the appellant was 20% negligent; therefore, appellant contends, the trial court should have granted appellant’s Motion for Judgment non obstante veredicto, and appellant’s motion for new trial. In determining a “no evidence" point, which is a question of law, the reviewing court considers only that evidence and the reasonable inferences therefrom which, viewed in its most favorable light, supports the jury finding and must reject all evidence or inferences contrary to the finding. Mead v. Johnson Group, Inc., 615 S.W.2d 685, 688 (Tex.1981).

After examining the record, we find that although the evidence of appellant’s negligence is not extensive, it does, in fact, exist. Because, due to a concussion, appellant had no memory of the events immediately preceding the collision, and no one else was in a position to observe her actions, Solis was the only witness able to testify concerning appellant’s conduct. Solis’s testimony from the stand or by deposition was that as he made the left turn, appellant had been sitting next to him, and she yelled and grabbed at him or the steering wheel in a manner that distracted him and prevented him from avoiding the accident.

Q. And I believe you also testified on your deposition before that Jo Ann didn’t interfere with your operation of the vehicle or distract you or divert you in any way other than she yelled that there’s going to be — that you were going to get hit, isn’t that correct?

A. Well, when she yelled that, you know, that did distract me.

Q. That distracted you?

A. Yes, sir.

Q. But that’s the only thing?

A. No sir. She, you know, when I started to turn she yelled.

Q. Okay. Mr. Solis, please speak up, the court reporter is trying to get all this down, it’s very important that he get this testimony.

A. Okay. When she yelled, as I remember it, she was reaching, you know, like she was going to get hit, and I tried to get her, but I couldn’t.

Q. She was reaching toward the door?

A. No, towards me.

Q. But she didn’t touch you?

A. No, sir. But I went like that, you know, I took my hand off the wheel.

Q. Okay. You did that after she warned you that you were going to get hit and that’s when you got hit?

A. Yes, sir.

Q. All she did was just reach out and yell, is that what you are saying?

A. Yes, sir.

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Q: All right. Let me read some more questions to you. “So, is it your position or testimony ... Mr. Solis, that Ms. Escamilla diverted your attention from the road by either grabbing your arm?” “Uh-huh.” The answer was “uh-huh.” “Trying to pull the steering wheel?” And you indicated affirmatively. And I said, “You have to say yes or no.” And your answer was “Oh! Yes.” Question, “Hollering at you?” “Yeah.” Did you give me those answers to those questions?

A. Yes, sir.

Q. Were they true answers?

A. Yes, sir.

Q. I asked you these questions and I want you to tell me if the answers are true today just like you told me in front of the court reporter back in October, 1979, and just like you are testifying under oath today. “And when she was distracting or diverting your attention, did that prevent you from driving your automobile in a normal manner?” Answer, “Yes, sir.” Question, “And when she was diverting you, did that prevent you from doing the things that you ordinarily would have done in turning your automobile?” Answer, “Yes, sir.” Question, “And when she was diverting your attention, did that cause you to do things that you ordinarily would not have done?” “Yes, sir ... I got excited, after awhile. Nervous. I don’t know what you call it.” Question, “And, therefore, I assume, Mr. Solis, that it is your position that Ms. Escamilla was involved, in some way, in causing this accident?” Answer, “Yes, sir.” Did you give me those answers, sir?

A. Yes, sir.

* * sjs * * *

Q. Okay. I asked you these questions and let me see if you gave the answers then and if they are true today. “Do you know how far your car was out of the roadway, when the impact occurred?” Answer, “No, sir.” “Tell me when Ms. Escamilla started — and I think your testimony was she started to slide over to the door like she always did; and that distracted your attention somewhat?” Answer, “Yes.” Question, “Okay. If she was sitting next to the door, how could she slide over towards the door?” Answer, “She was always moving over, when she said, ‘I think he’s going to hit you.’ ” Question, “You mean she moved over toward you?” Answer, “Yes, sir, she was with me. You know, she was like, you know, sitting — I said, ‘I’m not going to bite you,’ you know, she moved over. She started to move over when I started to turn. She said, ‘Oh, he’s going to hit you;’ and I — ” Question, “Let me see if I understand that. Lots of times people will drive automobiles and the driver will be right behind the steering wheel and his girlfriend or his date or his wife will be sitting right next to him.” “Yeah.” “You know, where the hump is in the car, the transmission is?” “Yeah.” “Lots of times the girl friend will be sitting way over, hugging the door. Okay. Now, my question to you, was Ms. Escamilla sitting right next to you or was she sitting over next to the door?” Answer, “She was sitting next to the door. Then, she came over next to me.” “So, she got over next to you?” “Yeah.” “And that’s when you all decided to make your turn?” “Yeah.” “And you said when she — ‘Come on over next to me, I’m not going to bite you’?” “Yeah.” “So, then, you started to make your left turn?” “Yeah.” Did you give me those answers, Mr. Solis?

A. Yes, sir.

This testimony was first taken in a deposition before trial, and many of Solis’ answers were reaffirmed in his testimony during trial.

A court may enter a judgment non obstante veredicto only if the material jury findings are without support in the evidence or are contrary to conclusive evidence. Pate v. Southern Pacific Transport Company, 567 S.W.2d 805, 807 (Tex.Civ.App. — Houston 1977, writ ref’d n.r.e.). The jury could have believed that where appellant was sitting or her actions just before the accident contributed to its cause. Viewing the evidence in the light most favorable to the jury’s findings, as we are required to do, we hold that Solis’s testimony does constitute probative evidence upon which the jury could base its finding of appellant’s comparative negligence. Pate, supra. Therefore, the trial court’s denial of appellant’s motion for judgment non ob-stante veredicto and motion for new trial was not error. See Berlow v. Sheraton Dallas Corp., 629'S.W.2d 818, 821 (Tex.Civ.App.—Dallas 1982, writ ref’d n.r.e.).

Another issue raised in appellant’s first six grounds of error is whether or not the record contains sufficient evidence to support the jury verdict attributing negligence to appellant. After examining the entire record, we find that there is sufficient evidence of probative force, or factual sufficiency, to support the jury’s verdict. In so doing, we have considered and weighed all the evidence and have determined that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust and in need of setting aside and remanding for a new trial. Adams v. Morris, 584 S.W.2d 712, 719 (Tex.Civ.App.—Tyler 1979, no writ history). It was for the jury to determine the credibility of witnesses and the weight to be given each one’s testimony. Bibbs v. Massey, 516 S.W.2d 273, 275 (Tex.Civ.App.1974), and we leave the jury’s finding undisturbed.

In final reference to points of error one through six, appellant argues that because she was a passenger, the only duty of care she owed to appellee was a duty not to interfere with the driver’s operation of the vehicle prior to any negligent act committed by the driver.¹ Appellant maintains that the only acts she committed which even remotely suggest a breach of the duty of reasonable care, occurred subsequent to the time Solis began his left turn. Appellant concludes that she was, therefore, not negligent, in that she did not breach her duty of care to appellee.

We find that appellant’s argument concerns a distinction without a difference. Although Solis may have begun his left turn prior to appellant’s interference, there is testimony that had his driving remained uninterrupted, he may have pulled into the adjacent driveway and avoided the collision. In Adams, supra at 717, the court held that “[wjhether or not a passenger’s conduct, as measured by the standard of ordinary care, constituted negligence is a question of fact for the jury.” The jury heard the testimony at trial and decided that appellant’s conduct was a contributing cause of the collision. Because there is evidence upon which that decision could be based, it is not for this court to disturb the jury’s resolution of the factual issue. Appellant’s points of error one through six are overruled.

In points of error seven through twelve, appellant argues that even if she was negligent, the trial court erred in failing to grant her amended motion for new trial because there was no evidence, or in the alternative, insufficient evidence, to support the jury’s findings that her conduct was a proximate cause of the accident, or because the jury’s answers were against the great weight and preponderance of the evidence. These points of error are overruled.

In McClure v. Allied Stores of Texas, 608 S.W.2d 901, 903 (Tex.1980), the Supreme Court held that “proximate cause cannot be established by mere guess or conjecture, but rather, must be proved by evidence of probative force.” We have held, upon examination of the record, that there is sufficient factual evidence, or evidence of probative force, from which the jury could conclude that appellant’s actions were a contributing cause of the collision. The question of whether there was sufficient evidence to decide that appellant’s conduct was a proximate cause of the collision is implicitly determined in the affirmative, within that holding; and we now make that express determination in overruling appellant’s points of error seven through twelve.

The judgment is affirmed.

1 . “Whether or not a legal duty exists under a given state of facts and circumstances is essentially a question of law for the court.” Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App. — Amarillo 1964, writ refd n.r.e.). The trial court determined that under the facts presented appellant owed a duty of care to appellee, and submitted the issue of appellant’s comparative negligence to the jury. Counsel for appellant neither objected to nor questioned such submission at that time.