Saenz v. Starry

774 S.W.2d 730, 1989 Tex. App. LEXIS 1740, 1989 WL 70276

• Court: Court of Appeals of Texas
• Decided: June 29, 1989
• Docket: 13-88-214-CV
• Status: Published

Opinions

OPINION

SEERDEN, Justice.

The trial court granted a motion for instructed verdict for the defendant in a suit brought under Texas’ Wrongful Death and Survival statutes. By a sole point of error, appellant argues that the trial court erred in granting the instructed verdict, claiming that the evidence and inferences were sufficient to go to the jury. We reverse and remand.

Appellant’s husband, Ismael Saenz, was killed on May 7, 1985, when the truck he drove for Whitley Trucking Co. collided head-on with a truck Noe Galvan drove for Frank W. Starry, d/b/a Starry Trucking Co. It was uncontested that Galvan was headed north and Saenz was headed south on Highway 281. There were no eyewitnesses to the collision. Most witnesses mentioned fog. Both drivers were pronounced dead at the scene.

Appellant’s petition alleges that Galvan was negligent in one or more respects, including failure to turn his vehicle to the right in an effort to avoid the collision, failure to maintain his vehicle in the proper right-hand lane, and failure to operate the vehicle wholly in the northbound traffic lane, and that this proximately caused Saenz’s death. In response to the motion for directed verdict, appellant’s attorney argued that the evidence that the point of impact was in the southbound lane and that Galvan turned left rather than right was sufficient to go to the jury.

In reviewing a directed verdict, we must determine whether any evidence of probative force raises fact issues on the material questions presented. Qantel Business Systems, Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex.1988); Sullivan v. Methodist Hospitals, 699 S.W.2d 265, 274 (Tex.App.—Corpus Christi, 1985), writ ref'd n.r.e., 714 S.W.2d 302 (Tex.1986). The trial court cannot refuse to submit an issue merely because an affirmative finding would be against the great weight and preponderance of the evidence. Sullivan, 699 S.W.2d at 274. We view the evidence in the light most favorable to the party against whom the verdict was rendered and disregard all contrary evidence and inferences. Qantel Business Systems, 761 S.W.2d at 303; C.S.R., Inc. v. Industrial Mechanical, Inc., 698 S.W.2d 213, 216 (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.).

Specifically, appellant claims that particular testimony of Jose Guzman, a DPS trooper, in which he concluded from his investigation that the point of impact was on the southbound lane, could have been used by the jurors to conclude that appellee’s vehicle veered into Saenz’s lane at the time of the collision and that this action was negligence and was a proximate cause of the collision. Guzman investigated the same morning of the collision.

Appellee argues that no evidence suggests that its vehicle was in an improper lane, but that its two accident reconstruction experts, Jerry Wallingford and Charles Ruble, agreed that Saenz’s truck was traveling in the wrong lane just before impact. Ruble, who investigated two days after the collision, concluded that Saenz’s vehicle was moving south in the northbound lane prior to impact, and that both drivers reacted by going to the southbound lane. Ruble also testified that about nine feet of improved shoulder was on each side of the road. Wallingford was contacted over a week after the collision. While Walling-ford’s analysis is more difficult to follow in the transcript, as he was demonstrating with a model, he concluded that Saenz’s vehicle was in the wrong lane before impact, and that there was no improper driving by Galvan. He agreed with the attorney’s statement that Saenz’s vehicle’s traveling in an improper lane “caused the Gal-van truck to go into the southbound lane.”

Both of appellee’s experts worked partly from photographs which were in evidence. The jury could draw its own conclusions and was not bound by the experts’ opinions. The jury could have concluded that appellee’s driver should have veered to his right, onto the shoulder to avoid the collision, and that his apparent choice to veer left, was negligent and proximately caused the collision.

Appellee cites McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 209 (Tex.1985) as an example of legal insufficiency of evidence. In that case, the plaintiffs expert, who had not made a personal inspection, testified that he did not know and could not determine from photographs whether there was any recent live subterranean termite activity in the home. The Court held that this testimony raised no more than a suspicion or surmise that all of the damage occurred after a certain date. Id. In our case, however, the witness did make a determination of the point of impact, and the jury was entitled to consider it. We sustain appellant’s point.

Appellee claims that appellant waived error for improper briefing. Contrary to appellee’s characterization, we find the brief contains citations both to the record and to legal authority. Moreover, we do not rule based on briefing inadequacies without allowing an opportunity to re-brief. See Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex.1987).

By “cross-point, appellee urges us to sanction appellant for bringing a frivolous appeal under Tex.R.App.P. 84. As we have sustained appellant’s point, the appeal is not frivolous. We overrule appellee’s cross-point. We REVERSE the trial court’s judgment and REMAND the cause.