Lee, Varrie v. Huntsville Livestock Services, Inc.

Affirmed and Memorandum Opinion filed April 3, 2003 Affirmed and Memorandum Opinion filed April 3, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00182-CV ____________ VARRIE LEE, Appellant V. HUNTSVILLE LIVESTOCK SERVICES, INC., Appellee __________________________________________________ On Appeal from the 278th District Court Walker County, Texas Trial Court Cause No. 17823-C __________________________________________________ M E M O R A N D U M   O P I N I O N This is the second appeal arising from a 1990 collision between appellant’s vehicle and several head of cattle along a rural road in Walker County, Texas. The underlying facts of the lawsuit are thoroughly described in our original opinion, are well known to the parties, and will not be restated here except as necessary for disposition of this appeal. See Lee v. Huntsville Livestock Servs., Inc., 934 S.W.2d 158 (Tex. App.—Houston [14th Dist.] 1996, no pet.). In the first appeal, the jury found appellee Huntsville Livestock Services, Inc. (“Huntsville Livestock”) negligent and awarded Lee $112,192.27 in damages. At the request of both parties, we set that judgment aside for error in the damages submission, and remanded for a new trial. On retrial, the jury found neither party negligent and a take-nothing judgment was entered in favor of appellee, from which this appeal ensued. In her first point of error, appellant argues the trial court erred in refusing her request for a res ipsa loquitur jury instruction. Under her second point of error, appellant challenges the jury’s failure to find Huntsville Livestock negligent as being against the great weight and preponderance of the evidence. We affirm. Standard of Review We review the trial court’s refusal to submit the res ipsa loquitur jury instruction under an abuse of discretion standard. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995). A trial court’s failure to issue appropriate instructions is not reversible error per se, but rather is reversible only when it amounts to such a denial of the rights of the complaining party as was reasonably calculated to and probably did cause the rendition of an improper judgment. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). In considering whether a jury’s failure to find negligence is against the great weight and preponderance of the evidence, we review the entire record and consider all the evidence both favorable and contrary to the verdict. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will reverse and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). Analysis Appellant contends the trial court erred in refusing to submit a jury instruction on the doctrine of res ipsa loquitur. Appellant tendered a written requested jury instruction on the doctrine[1], which was refused by the court. Appellee argues the trial court properly refused the instruction, as it was neither merited by the evidence nor required in light of the court’s circumstantial evidence instruction. Res ipsa loquitur is not an independent legal theory, but a rule of evidence whereby negligence may be inferred under certain circumstances. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974). A jury instruction based on the doctrine relieves a plaintiff of the burden of proving the defendant committed a specific act of negligence when it is impossible for the plaintiff to determine the sequence of events, or when the defendant has superior knowledge or means of information to determine the cause of the accident. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982); Trans Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). To be entitled to a res ipsa instruction, the plaintiff must show both (1) that the character of the injury is such that it could not have occurred without negligence; and (2) that the instrumentality causing the injury was under the sole management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). A plaintiff is not always entitled to a specific res ipsa instruction even if the evidence raises the issue, as a circumstantial evidence instruction can be sufficient. As stated by the Texas Supreme Court, “[i]n some cases the inferences arising from the circumstances of the accident are so apparent that no special instruction is necessary.” Bell, 517 S.W.2d at 256. In other cases, “it is sufficient to give the jury a circumstantial evidence instruction to instruct them that acts of negligence can be proved both by direct evidence and by inferences from other facts.” Id. Lastly, there are additional cases where it would be “helpful to give the jury a more specialized res ipsa instruction . . . .” Id. class=Section2> Here, the trial court instructed the jury as to circumstantial evidence,[2] and appellant has not shown this Court why such an instruction was insufficient under the particular facts of the case. Appellant argues in his brief that the circumstantial evidence instruction as given did not conform to Bell in that it failed to instruct the jury that acts of negligence can be proved by both direct evidence and by inferences from other facts proved. This argument, even if correct, comes too late as Lee did not object to the language of the instruction at trial. See Tex. R. Civ. P. 274 (“Any complaint as to a [jury] question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”). Although at oral argument appellant argued that he should have been given both a circumstantial evidence and a res ipsa instruction, he cites no authority in support of such an argument, nor are we aware of any supportive authority. Regardless, a circumstantial evidence instruction, as used here by the trial court, has been recognized as properly informing the jury it could infer negligence from circumstantial evidence. See Trans Am., 39 S.W.3d at 650; Nichols v. Copeland, No. 05-99-01233-CV, 2001 WL 800112, at *2 (Tex. App.—Dallas 2001, pet. denied) (not designated for publication). The trial court’s failure to specifically instruct the jury on the res ipsa doctrine did not deny appellant a theory of recovery, but simply limited her to one recognized means of instructing a jury on the inference of negligence. See Trans Am., 39 S.W.3d at 650. Appellant has not shown, nor do we find, any harm by the trial court’s use of the circumstantial evidence instruction in lieu of the requested res ipsa instruction.[3] See Trans Am. at 650; Island Recreational, 710 S.W.2d at 555. class=Section3> Second, the res ipsa doctrine only applies when the character of the particular injury or accident is such that it could not have occurred without negligence. Haddock, 793 S.W.2d at 950. The focus is on the nature of the injury or accident, not the conduct of appellee, as res ipsa does not require evidence of a specific act of negligence. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 740 (Tex. App.—Amarillo 1999, no pet.). Generally, res ipsa is not applicable where the plaintiff cannot rely on general knowledge to show the accident would not have happened in the absence of negligence, or where the plaintiff has not produced expert testimony that the accident ordinarily does not occur without negligence. Trans Am. at 649. Nor is the doctrine appropriate when direct evidence points to possible negligence. Id.; Farr v. Wright, 833 S.W.2d 597, 600–01 (Tex. App.—Corpus Christi 1992, writ denied). Appellant did not present any expert testimony that cattle ordinarily do not escape confinement and wander onto public roads without negligence, or establish that it is a matter of common knowledge that such an occurrence cannot happen in the absence of negligence. To the contrary, the uncontroverted evidence showed that the gate and locking mechanisms used by appellee were standard in the livestock industry. No testimony was presented by appellant demonstrating that it was a breach of ordinary care not to chain and padlock every gate to avoid cattle breaking loose, or that appellee’s actions in attempting to regain control over the cattle were below the standard of care. Appellant clearly attempted to show through cross-examination of appellee’s witnesses, and argued during closing argument, that specific acts and omissions of appellee caused the accident — such as not chaining and padlocking the gates, not closing the outside perimeter gates, not notifying law enforcement authorities of the escaped cattle, and not posting warnings along the road that cattle had escaped. Texas courts have held that res ipsa is not appropriate when direct evidence points to specific acts of possible negligence. See Trans Am. at 649–50. The record as a whole shows appellant’s position, consistent throughout trial, had been that specific negligent acts or omissions on the part of appellee’s employees caused the accident. Appellant did not establish that the nature of the accident “was such that, taken apart from appellee’s alleged acts, negligence may be inferred.” Id. at 650. Last, assuming appellant had shown the accident was one that could not have occurred without negligence, she has not met her burden of proving the error resulted in an improper judgment. See Tex. R. App. P. 44.1(a)(1); Island Recreational, 710 S.W.2d at 555. We find the trial court did not abuse its discretion in refusing the requested instruction and overrule appellant’s first point of error. In her second point of error, appellant challenges the factual sufficiency of the evidence to support the jury’s finding that Huntsville Livestock was not negligent, arguing such failure to find is against the great weight and preponderance of the evidence. In support of his arguments regarding Huntsville Livestock’s negligence, appellant contends that the calves crashed through the internal pen gate, escaped through an open perimeter gate, and ran onto the road in front of appellant’s vehicle, causing the collision. Lee contends the gate latch was insufficient, the perimeter gates should have been kept closed, and appellee’s employees should have done more to try to round up the escaped calves and warn motorists of the situation. There was ample suggestion by appellant of specific actions appellee could have taken in hindsight to prevent the calves from escaping, but she presented no evidence that the actions appellee did take constituted a breach of ordinary care under the circumstances. One of appellee’s employees testified, without contradictory evidence from appellant, that ninety-percent of the time when cattle inadvertently escape their pen, they return back to the rest of the herd on their own, and the only reason to chain and padlock a pen gate is to keep the cattle from being stolen. Another employee testified that sooner or later, cattle just get loose from time to time, without carelessness on anyone’s part, and they had not been careless in any manner on the day of the accident. One of the employees testified the calves had escaped the internal pen by somehow managing to bend a drop pin, which he had never seen happen before. Again, none of this testimony was refuted by appellant. It was appellant’s burden to prove Huntsville Livestock was negligent in the enclosing and handling of the calves. The jury found Huntsville Livestock exercised ordinary care in enclosing and handling the cattle, even though some calves did manage to crash through the gate and escape onto the roadway. It was the jury’s province to judge the credibility of the evidence and resolve any conflicts or inconsistencies. After a careful review of the record, we do not find that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. See Cain, 709 S.W.2d at 176. Appellant’s second point of error is overruled. Conclusion For the reasons we have stated, appellant did not show a res ipsa loquitur jury instruction was appropriate under the facts of this case, or that the trial court’s refusal to instruct the jury on res ipsa resulted in the rendition of an improper judgment. We find no abuse of discretion. Moreover, appellant did not meet her burden of proving Huntsville Livestock negligent in either the manner of handling or penning the cattle or in how it responded to the cattle that had escaped. The jury’s failure to find negligence was not so against the great weight and preponderance of the evidence as to be manifestly unjust. The judgment is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed April 3, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. [1] The requested instruction read: “As to the conduct of Huntsville Livestock Services, Inc., you may infer negligence, but are not required to do so, if you find that the character of the accident is such that it would not ordinarily happen in the absence of negligence and if you find that the cattle causing the accident were under the management and control of Huntsville Livestock Services, Inc. at the time the negligence, if any, probably occurred.” [2] The instruction was as follows: “A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by witnesses who saw the act done or heard the words spoken or by documentary evidence. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.” [3] As the jury found appellee negligent in the first trial in absence of a res ipsa instruction, it appears somewhat incongruous for appellant to argue that absence of the same instruction caused the jury to find appellee not negligent in the second trial. We note the jury charge in both trials included the same instruction on circumstantial evidence.