Trailways, Inc. v. Mendoza

745 S.W.2d 63, 1987 WL 42800
CourtCourt of Appeals of Texas
DecidedJanuary 13, 1988
Docket4-86-00598-CV
StatusPublished
Cited by5 cases

This text of 745 S.W.2d 63 (Trailways, Inc. v. Mendoza) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trailways, Inc. v. Mendoza, 745 S.W.2d 63, 1987 WL 42800 (Tex. Ct. App. 1988).

Opinions

OPINION

ESQUIVEL, Justice.

This is an appeal from a personal injury suit. Juan Hernandez Mendoza (appellee) was a passenger on a Trailways, Inc. and Trailways of Texas, Inc. (appellant) bus when the bus, driven by Francisco Vasquez, was involved in a head-on collision with a pickup truck, driven by Eloy Espinoza. The bus turned over, injuring appellee.

The jury found the following:

[65]*65SPECIAL ISSUE NO. 1
Was the negligence, if any, of any party a proximate cause of the injuries to Juan Hernandez Mendoza, aka: Juan Hernandez?
Eloy Espinoza Yes
Francisco Vasquez Yes
SPECIAL ISSUE NO. 2
For each party you found in answer to Special Issue No. 1 to have caused the injuries to Juan Hernandez Mendoza, aka: Juan Hernandez, find from a preponderance of the evidence the percentage attributable to each.
Negligence, if any, of Eloy Espinoza 15%
Negligence, if any, of Francisco Vasquez 85%

In answer to Special Issue No. 3 regarding damages, the jury found:

(a) Physical pain and mental anguish in the past. $ 75,000.00
(b) Physical pain and mental anguish that, in reasonable probability, he will suffer in the future. $ 50,000.00
(c) Loss of earnings in the past. $ 15,888.00
(d) Loss of earning capacity that, in reasonable probability, he will suffer in the future. $102,960.00
(e) Reasonable and necessary medical expenses in the past. $ 10,000.00

The trial court reduced the $253,848.00 jury award by fifteen percent (15%), the percentage of causation attributable to Espinoza, and entered judgment for appellee in the amount of $215,770.80.

Appellant timely filed a motion for new trial which was denied by the trial court. This appeal resulted.

Appellant raises several points of error, which we consider in eight groups.

BUS DRIVER’S NEGLIGENCE

Appellant alleges the evidence is factually insufficient to support the jury’s finding in Special Issue No. 2 that the negligence of Vasquez was eighty-five (85%) of the cause of appellee’s injuries. We note that appellant does not complain of the answer to Special Issue No. 1, finding that Vasquez was negligent and that his negligence was a proximate cause of appellee’s injuries. Compare Perez v. Baker Packers, 694 S.W.2d 138, 142 (Tex.Civ.App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.).

We consider all the evidence in the record to determine if the evidence is factually insufficient to support the answer to Special Issue No. 2, or if the answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. Garza v. Alviar, 395 S.W.2d 821, 834 (Tex.1965).

Appellee introduced evidence that Vasquez was going at least sixty-eight (68) miles per hour where the speed limit was fifty-five (55). Appellee also elicited testimony that Vasquez could have taken, but did not take, evasive action by moving the bus to the right onto the paved shoulder, thereby avoiding the pickup truck. There was evidence that Vasquez said, after the accident, that he saw the pickup truck weaving “way down the road” and then start to come over into Vasquez’ lane. Vasquez then hit the brakes.

The trial court instructed the jury on Vasquez’ higher standard of care as a bus driver, which he owed to appellee. The charge provided that “negligence” as applied to Vasquez means failure to use a high degree of care. The charge stated that in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event might have reasonably resulted. Also in the charge, “ordinary care” as applied to Vasquez means a high degree of care which would have been used by a very cautious, competent, and prudent person. Compare MacConnell v. Hill, 569 S.W.2d 524 (Tex.Civ.App.—Corpus Christi 1978, no writ) (in apportioning the percentage of negligence that caused injuries, the jury should be instructed to consider the different negligence standards of an adult and a child).

The evidence also showed that Espinoza was an unlicensed, seventeen year old driv[66]*66er. Espinoza improperly crossed the center line into the bus’ lane where the accident occurred.

The rule is well established in this state that an appellate court will not disturb the finding of a jury on conflicting evidence where there is some evidence to support this verdict unless the verdict is so overwhelmingly against it as to shock the conscience or to show clearly that the conclusion reached was wrong, or was the result of passion, prejudice, or improper motive. Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.—San Antonio 1975, writ ref d n.r. e.).

We find the evidence is sufficient to support the jury's answer to Special Issue No. 2, and the answer is not against the great weight and preponderance of the evidence.

DOCTOR’S TESTIMONY

Appellant asserts that the trial court erred in allowing medical testimony regarding a doctor’s observations and conclusions based on X-rays which were never produced nor admitted into evidence.

Dr. Cesar Luis testified about appellee’s injuries. According to Luis, appellee suffered from a fracture-dislocation of the cervical spine. The doctor said that tomo-grams and X-rays were taken of appellee’s cervical spine which showed a seven millimeter displacement between two vertebra. Luis stated that a tomogram is a series of X-rays showing different layers or slices of the spine. Dr. Luis testified that a displacement of the vertebral body is a dislocation, and there cannot be a dislocation without some fracture. The doctor said that with the type of injury appellee sustained, the doctor assumes there is a fracture and treats the patient as if one exists.

Prior to the introduction of the doctor’s testimony, in the form of a video deposition, appellant’s counsel objected to any answers or testimony of the doctor concerning fractures of the neck, any X-rays or the results of X-rays, or conclusions and opinions regarding fractures or dislocations of the neck. Appellant based the objection on the fact that the X-rays were not in evidence. The trial court overruled the objection and granted appellant a running objection to the doctor’s testimony.

Appellant argues it is error to allow a doctor to testify about X-rays when the X-rays are not produced so as to allow the opponent an opportunity to properly cross-examine the witness. Appellant relies on Avila v. United States Fidelity & Guaranty Co., 551 S.W.2d 453, 457 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.). Additionally, appellant points to Avila

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745 S.W.2d 63, 1987 WL 42800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trailways-inc-v-mendoza-texapp-1988.