Johnathan Leija v. Juanita Aguillon

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00473-CV Johnathan Leija, Appellant v. Juanita Aguillon, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 151,715-B, HONORABLE RICK MORRIS, JUDGE PRESIDING PER CURIAM Johnathan Leija sued Juanita Aguillon for damages arising from an automobile collision. He appeals the take-nothing judgment rendered upon the jury's failure to find that Aguillon negligently and proximately caused the collision. By his sole point of error, he contends that the jury's failure to find was against the great weight and preponderance of the evidence. He contends that the trial court erred by overruling his motion for new trial that was based on the same assertion of error. We will affirm the judgment. The chain of events leading to the wreck is not disputed here; on appeal, the dispute is whether the great weight and preponderance of the evidence established that Aguillon's negligence proximately caused the wreck. Several cars lined up at a traffic light moved forward when the light turned green. The first three stopped suddenly just past the intersection without incident. Debra Hix, driving the fourth car, stopped safely, as did Leija's truck behind her. But Aguillon's car crashed into Leija's truck from behind, pushing it into Hix's car. The jury refused to find that negligence by either Aguillon or Leija proximately caused the occurrence. Leija disputes that refusal as to Aguillon. When reviewing the jury's failure to find a particular issue, we look at all the evidence and will only reverse and remand for a new trial when we conclude that the failure to find is against the great weight and preponderance of the evidence. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988). We are mindful that the jury was not convinced by a preponderance of evidence and that we are not entitled to reverse merely because we conclude that the evidence preponderates toward an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The testimony relevant to the negligence and causation issues came from Leija, Hix, and Patrick Mullins, the investigating officer. Aguillon did not testify. Mullins did not see the accident, but testified about what the participants told him at the scene. Aguillon told the officer she saw the traffic in front of her stop, but could not avoid hitting Leija's truck; Mullins neither wrote in his report nor recalled that she said anything about Leija's brake lights not working. Mullins said Hix and Leija told him the same story--that Leija stopped his car but was pushed into Hix by the impact from Aguillon. Hix and Leija repeated that version of the accident in their testimony at trial. Leija, however, made some seemingly inconsistent statements at trial. The most relevant to causation regarded when he checked to see whether his brake lights were working. His truck passed inspection in late 1993, indicating that his brake lights worked then. He said he had no indication before the accident that the lights were not working. He testified that Aguillon said nothing to him on the day of the accident about not seeing his brake lights. He said he checked his lights (and found them working) when he learned that Aguillon was complaining about his brake lights; he first said he learned of her complaint at her deposition (a year after the accident), but he also said that he learned of the complaint about two months after the accident. Then he testified that he checked them nine days after the accident when he repaired the plastic covers of the taillights, but not the bulbs. At the end of cross-examination on this issue, he stated that he had checked the lights at all these times because he maintained his truck. We note that there was no direct testimony that Leija's lights were not working at the time of the accident. However, Aguillon's attorney also noted some inconsistencies in Leija's testimony regarding his work schedule and between his recollection and physician's records. These inconsistencies may have discredited his testimony in the jury's evaluation. Leija seeks to invoke a statute to compel a conclusion that the trailing vehicle must be found negligent and the proximate cause of any rear-end collision. See Tex. Transp. Code Ann. § 545.062 (West 1997). (1) Subsection (a) of this statute continues to require that a trailing vehicle maintain an "assured clear distance" from a preceding vehicle such that, considering the traffic, speed, and road conditions, the trailing vehicle can safely stop without colliding with the preceding vehicle or anything else. Id. Not every violation of this statute, however, is negligence as a matter of law. Caughman v. Glaze, 412 S.W.2d 357, 362 (Tex. Civ. App.--San Antonio 1967, writ ref'd n.r.e.). Leija cites several cases in which appellate courts reversed juries' failures to find that a trailing driver's negligence proximately caused a rear-end collision. The most compelling comparisons are to Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970), and Priest v. Myers, 598 S.W.2d 359 (Tex. Civ. App--Houston [14th Dist.] 1980, no writ). The trailing driver in Clark admitted that he looked away from the road at street addresses and hit the preceding car when it stopped unexpectedly; he said he could have stopped in time had he been watching the preceding car. 452 S.W.2d at 438-39. The jury found the trailing driver negligent for failing to keep a proper lookout, but declined to find that the failure was a proximate cause of the accident. Id. The trial court granted the plaintiff's motion to disregard the failure to find, but the appellate court reversed that ruling. Id. The supreme court reversed the appellate court, holding that, as a matter of law, the defendant's failure to keep a proper lookout foreseeably resulted in the accident. Id. at 440. In Priest, a line of cars entering a Houston freeway at rush hour came to a quicker-than-normal stop; the last car in the string did not stop in time and rear-ended the car in front of it, pushing it into the next car. 598 S.W.2d at 361. The driver of the rear-ending car admitted that he looked over his shoulder to try to change lanes, then looked back to find the cars stopped in front of him. Id. The jury found him negligent for failing to keep an assured clear distance from the preceding car, but declined to find that his actions proximately caused the wreck. Id. Relying on Clark, the court of appeals reversed, holding that the failure to keep an assured clear distance was the proximate cause of the accident. Id. at 362. The court reasoned that, because the line of cars preceding him was able to stop safely, the fact that he initiated a collision led to the inference that his negligence was the proximate cause of the wreck. Id. at 362-63. The Clark and Priest decisions are distinguishable. In each case, the jury found the rear-ending driver negligent based on the driver's own version of events; the appellate courts merely reversed the failure to find that the negligence was a proximate cause of the accident. Aguillon has not similarly admitted, nor did the jury find, that she acted negligently. The testimony is only that she could not stop in time to avoid hitting Leija, not that she looked away or over her shoulder. Also, neither cited case has an intimation of negligence by the lead vehicle, as here with the question over the functionality of Leija's brake lights. We therefore instead look to Vandyke v. Austin Indep. Sch. Dist., 547 S.W.2d 354 (Tex. Civ. App.--Austin 1977, no writ). A school bus rear-ended a car on or shortly after an exit ramp from a freeway. Testimony differed as to whether the car stopped suddenly or had its lights on. Id. at 355. The trial court, as fact finder, determined that neither party had proved negligence by the other. Id. On appeal, this Court held that the mere occurrence of a rear-end collision does not prove negligence as a matter of law, and that plaintiffs must show specific acts of negligence by the trailing driver. Id. at 357. Though the Court opined that negligence could be proved by inference, it declined to reverse the trial court's refusal to find negligence. Id. We must similarly defer to the jury's determination here. Though Leija argued strongly for an inference of negligence by Aguillon, the jury was unconvinced. We are not persuaded that the absence of alternate explanations for the crash in this case constitutes a great weight of evidence mandating that we overturn the jury's failure to find.. We decline to overturn the jury verdict in the absence of any evidence of negligence by Aguillon beyond the fact of the collision. We overrule the sole point of error and affirm the judgment. Before Chief Justice Carroll, Justices Aboussie and B. A. Smith Affirmed Filed: March 20, 1997 Do Not Publish 1. At the time of the collision, this statute was found at Tex. Rev. Civ. Stat. Ann. art 6701d § 61(a). The current text, although somewhat revised, is essentially unchanged in meaning. No instruction or question regarding this statute was included in the charge. ompelling comparisons are to Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970), and Priest v. Myers, 598 S.W.2d 359 (Tex. Civ. App--Houston [14th Dist.] 1980, no writ). The trailing driver in Clark admitted that he looked away from the road at street addresses and hit the preceding car when it stopped unexpectedly; he said he could have stopped in time had he been watching the preceding car. 452 S.W.2d at 438-39. The jury found the trailing driver negligent for failing to keep a proper lookout, but declined to find that the failure was a proximate cause of the accident. Id. The trial court granted the plaintiff's motion to disregard the failure to find, but the appellate court reversed that ruling. Id. The supreme court reversed the appellate court, holding that, as a matter of law, the defendant's failure to keep a proper lookout foreseeably resulted in the accident. Id. at 440. In Priest, a line of cars entering a Houston freeway at rush hour came to a quicker-than-normal stop; the last car in the string did not stop in time and rear-ended the car in front of it, pushing it into the next car. 598 S.W.2d at 361. The driver of the rear-ending car admitted that he looked over his shoulder to try to change lanes, then looked back to find the cars stopped in front of him. Id. The jury found him negligent for failing to keep an assured clear distance from the preceding car, but declined to find that his actions proximately caused the wreck. Id. Relying on Clark, the court of appeals reversed, holding that the failure to keep an assured clear distance was the proximate cause of the accident. Id. at 362. The court reasoned that, because the line of cars preceding him was able to stop safely, the fact that he initiated a collision led to the inference that his negligence was the proximate cause of the wreck. Id. at 362-63. The Clark and Priest decisions are distinguishable. In each case, the jury found the rear-ending driver negligent based on the driver's own version of events; the appellate courts merely reversed the failure to find that the negligence was a proximate cause of the accident. Aguillon has not similarly admitted, nor did the jury find, that she acted negligently. The testimony is only that she could not stop in time to avoid hitting Leija, not that she looked away or over her shoulder. Also, neither cited case has an intimation of negligence by the lead vehicle, as here with the question over the functionality of Leija's brake lights. We therefore instead look to Vandyke v. Austin Indep. Sch. Dist., 547 S.W.2d 354 (Tex. Civ. App.--Austin 1977, no writ). A school bus rear-ended a car on or shortly after an exit ramp from a freeway. Testimony differed as to whether the car stopped suddenly or had its lights on. Id. at 355. The trial court, as fact finder, determined that neither party had proved negligence by the other. Id. On appeal, this Court held that the mere occurrence of a rear-end collision does not prove negligence as a matter of law, and that plaintiffs must show specific acts of negligence by the trailing driver. Id. at 357. Though the Court opined that negligence could be proved by inference, it de