Weaver v. United States Testing Co.

886 S.W.2d 488, 1994 WL 559629
CourtCourt of Appeals of Texas
DecidedNovember 3, 1994
Docket01-90-01143-CV
StatusPublished
Cited by17 cases

This text of 886 S.W.2d 488 (Weaver v. United States Testing Co.) 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
Weaver v. United States Testing Co., 886 S.W.2d 488, 1994 WL 559629 (Tex. Ct. App. 1994).

Opinion

OPINION ON MOTION FOR REHEARING

WILSON, Justice.

We grant the appellants’ motion for rehearing, withdraw our previous opinion, and substitute the following.

This is an appeal from a judgment in a personal injury suit resulting from a rear-end automobile collision. Appellants Kathleen Weaver and her husband, Hutson Weaver, brought suit to recover her alleged personal injury damages and his loss of consortium damages. A jury found that appellee Arlen Swanner’s negligence, if any, did not proximately cause the occurrence in question. In three points of error, appellant argues that the trial court erred in overruling her motion for new trial because she established appel-lee’s negligence as a matter of law, that the jury finding that appellee’s negligence, if any, did not cause the collision was against the great weight and preponderance of the evidence, and that the testimony of an improperly designated expert witness was erroneously admitted. We affirm.

Summary of Facts

The testimony at trial reveals that Swan-ner was driving behind Mrs. Weaver heading south on Battleground Road. Both parties were in the right-hand lane. Mrs. Weaver stopped her automobile at a red light at the intersection of Battleground Road and Highway 225. Swanner stopped his vehicle about one car-length behind Mrs. Weaver. Both parties intended to make a right turn onto Highway 225. Mrs. Weaver began moving forward in an extended turn area to make her right turn. Seeing that Mrs. Weaver was beginning to turn, Swanner looked to his left to check the traffic on Highway 225, and began to move forward because the only traffic on Highway 225 was turning right onto Battleground Road. Swanner testified that he did not accelerate, but only took his foot off the brake to move forward. By the time Swanner looked forward, Mrs. Weaver had stopped again and he was unable to avoid striking her vehicle from behind.

Negligence as a Matter of Law

Mrs. Weaver asserts in her first point of error that the trial court erred in entering *490 judgment on the jury’s verdict and overruling her motion for a new trial because she established as a matter of law that the appel-lee’s negligence proximately caused the occurrence in question.

A party attempting to overcome an adverse fact finding as a matter of law must pass a two-pronged test. First, the record must be searched for evidence that supports the jury’s findings, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder’s answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). In reviewing “matter of law” points of error, the reviewing court must consider all of the evidence and only if the converse of the jury finding is established conclusively by the evidence in the record will the point of error be sustained. Meyerland Community Improvement Ass’n. v. Temple, 700 S.W.2d 268, 267 (Tex.App.—Houston [1st Dist.] 1985, writ refd n.r.e.).

The mere occurrence of a rear-end collision will not present evidence of negligence as a matter of law. Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.—Houston [14th Dist.] 1989, writ denied). The plaintiff must prove specific acts of negligence on the part of the following driver and must also prove proximate cause. Neese v. Dietz, 845 S.W.2d 311, 314 (Tex.App.—Houston [1st Dist.] 1992, writ denied); Vandyke v. Austin Indep. Sch. Dist., 547 S.W.2d 354, 357 (Tex.Civ.App.—Austin 1977, no writ).

The testimony indicates both parties were stopped at an intersection' controlled by a traffic signal, and both intended to turn right while the signal light controlling their lane of traffic was red. The relevant portion of the traffic regulations provides:

Vehicular traffic facing a steady red signal alone shall stop at a clearly marked stop line, ... and may then turn right ... after standing until the intersection may be entered safely, yielding right-of-way ... to other traffic lawfully using the intersection.

Tex.Rev.Civ.StatAnn. art. 6701d, § 33(e)(1) (Vernon 1964).

The testimony before the jury indicated that Swanner came to a complete stop behind Mrs. Weaver. Swanner looked to the left to check for traffic coming from that direction after Mrs. Weaver began moving forward, and observed a truck making a right turn. Swanner testified that as he did so he took his foot off the brake. When Swanner turned back around, Mrs. Weaver had stopped again and Swanner applied his brakes, but not in time to avoid hitting her vehicle. Mrs. Weaver did not testify as to why she had stopped again.

In similar cases dealing with a situation where one lane of traffic is required to yield the right-of-way to another coming from a different direction, Texas courts have affirmed the findings of a jury acquitting a defendant of negligence in a rear-end collision.

The jury heard all of the evidence, observed the witnesses and acquitted defendant of any negligence. In cases of this character standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts. The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence adduced before it.

Neese v. Dietz, 845 S.W.2d at 314; Gaitan v. Reyes Salvatierra, 485 S.W.2d 602, 604 (Tex.Civ.App.—San Antonio 1972, no writ).

Appellant failed to persuade the jury that the negligence of appellee, if any, was a proximate cause of the collision. We find the evidence presented was legally sufficient to support the jury’s finding, in light of appel-lee’s testimony that appellant began to pull out as if turning, then stopped, offered no explanation for her stop, and appellee turned his head to check oncoming traffic only when he saw appellant begin to turn. In light of this evidence, the jury could have reasonably inferred that the conduct of the appellee did not violate any standard of care, and, given the circumstances, was not negligent.

*491 After examining the entire record, pursuant to the second prong of the test for reviewing “matter of law” points of error, we determine that the converse of the jury finding was not established conclusively by the evidence. Therefore, we find that it was not established as a matter of law that appellee’s negligence, if any, was a proximate cause of the occurrence.

We overrule appellant’s first point of error. Jury Finding Against the Great Weight of the Evidence

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886 S.W.2d 488, 1994 WL 559629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-united-states-testing-co-texapp-1994.