Opinion issued May 17, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00984-CV
____________
JOSE H. ORTIZ, MARIO H. ORTIZ, LEONARDO H. ORTIZ, JUAN GARCIA, AND RAMON HERNANDEZ SALAS, Appellants
V.
JOHN MARTINEZ, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2003-42662
MEMORANDUM OPINION
Appellants, Jose Ortiz, Mario Ortiz, Leonardo Ortiz, Juan Garcia, and Ramon Hernandez Salas, challenge the trial court's take-nothing judgment entered in favor of appellee, John Martinez, on their claim for negligence. In five issues, appellants contend that the trial court erred in submitting a sudden emergency instruction in the jury charge and that the evidence is legally and factually insufficient to support both the jury's finding that Martinez's negligence, if any, did not proximately cause appellants' injuries as well as the jury's zero damages findings in regard to each appellant.
We affirm.
Factual and Procedural Background
In their original petition, appellants alleged that Martinez negligently caused a car that he was driving to collide with a pick-up truck in which they were traveling. Appellants asserted that Martinez was negligent in (1) "failing to comply with traffic-safety laws, namely, by failing to control his speed"; (2) "driving his vehicle without due caution and circumspection and in utter disregard" of appellants; (3) "failing to drive his vehicle in a manner that a person of ordinary prudence would have driven under like or similar circumstances and conditions then and there existing"; (4) "failing to keep a proper lookout of the type and character that a person of ordinary prudence would have kept in the exercise of ordinary care under like or similar circumstances and conditions then and there existing"; (5) "failing to have his vehicle under reasonable and proper control"; (6) failing to apply the brakes of his vehicle and thereby to bring his vehicle to a stop in time to avoid colliding with the vehicle in which [appellants] [were] driving in, or to render the collision less violent and less injurious and damaging" to appellants; (7) "failing, immediately prior to the collision, to turn his vehicle either to the left or right and thereby avoiding colliding with" appellants' vehicle; and (8) "violating the Texas Transportation Code Section 545.351." (1) Appellants further alleged that they suffered damages as a result of the collision.
At trial, Jose Ortiz, with the assistance of a Spanish translator, testified that he was driving his truck southbound on the North Freeway, with Mario Ortiz in the front passenger seat and Juan Garcia and Ramon Salas in the backseat, when his truck was struck from behind by a car driven by Martinez. Jose Ortiz was driving approximately thirty or forty miles per hour in the right lane closest to the shoulder. When he saw an accident up ahead in his lane, he applied his brakes, causing his truck to come to a stop "with sufficient time." Although appellants' truck came to a stop, cars in the two left lanes continued moving. Jose Ortiz did not notice Martinez's car until after the collision with Martinez. Jose Ortiz further testified that he suffered physical injuries as a result of the collision. Mario Ortiz, Juan Garcia, and Ramon Salas Hernandez also testified that they suffered physical injuries as a result of the collision.
Martinez testified that the collision occurred at approximately 6:30 a.m. "on the on-ramp, or shortly after the on-ramp, between Patton and Main Street" of Interstate 45. Traffic "was pretty heavy." Martinez described the entrance ramp to the freeway as having a "downhill slope" to enter into the flowing lane of traffic. He explained that the entrance ramp is "probably one of the shortest on-ramps here in Houston" and "[y]ou either get into traffic or you get pushed into the side of the wall." The entrance ramp requires a driver to look back to check for merging traffic and to "make sure nobody's going to cut over." After the traffic light to the entrance ramp had turned green, the cars in front of Martinez moved forward, but because there was too much traffic in the lane to actually enter the freeway, the cars "just kept inching forward." As he entered the freeway, Martinez, driving a Toyota Corolla, was behind appellants' truck and "parked behind it." He looked to his left and saw that there was an opening in the freeway. Appellants' truck had already moved forward and was moving into traffic, so Martinez began to accelerate. When he looked forward, all he saw were brake lights from the truck. Martinez slammed on his brakes and turned the steering wheel thinking there was enough room to stop, but his car struck appellants' truck from behind, causing his air bag to deploy. The windshield of Martinez's car "was damaged from when the air bag went off," which caused his hand to be thrown up against it. His seats would not move and he could not drive the car. Also, the front left quarter panel of the car and its radiator were damaged from going underneath appellants' truck. Martinez exited his car through the driver's-side window.
Martinez explained that he had used the entrance ramp to gain access to Interstate 45 on a regular basis, but he now prefers not to use it because of the collision. "[A] lot of accidents" occur near the area, in part due to the short nature of the entrance ramp. Although he thought it necessary for Jose Ortiz to have stopped the truck, Martinez had kept a proper lookout prior to the collision. Moreover, Martinez did not think that the collision was "unavoidable," and, when questioned as to whether he felt that he was responsible for the collision, he answered, "Well, I would say yeah, because I did hit him."
Martinez further testified that, prior to the collision, he looked over his left shoulder for only one or two seconds, "watching a car behind [him] and oncoming traffic to make sure there was . . . enough time and space to get in." Prior to looking over his shoulder, the truck driven by Jose Ortiz was "proceeding on the freeway," and Martinez did not see its brake lights. Martinez, who was attempting to enter the lane of traffic, was unable to see what was happening in the lane ahead of the truck. Martinez explained that he drove his car in a prudent manner, considering the traffic conditions that morning, and he was merely accelerating to match the speed of the traffic.
Sudden Emergency
In their first issue, appellants argue that the trial court erred in including a sudden emergency instruction in the jury charge because Martinez's "own negligent act caused the condition."
However, a party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Tex. R. Civ. P. 274. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. Id. On appeal, the reviewing court must examine the pleadings, the evidence presented, and the jury charge; any error regarding a requested instruction will not be deemed reversible unless it was reasonably calculated to cause and probably did cause rendition of an improper judgment. Jordan v. Sava, Inc., No. 01-03-00554-CV, 2007 WL 1119931, at *5 (Tex. App.--Houston [1st Dist.] April 12, 2007, no pet. h.); see also Tex. R. App. P. 44.1(a)(1).
Here, the reporter's record consists solely of the testimony of four of the five appellants, Jose Ortiz, Mario Ortiz, Juan Garcia, and Ramon Salas Hernandez, and that of appellee, John Martinez. (2) The reporter's record does not include a transcription of the charge conference and does not demonstrate that appellants preserved error by properly objecting to the submission of the sudden emergency instruction in the jury charge. See Tex. R. Civ. P. 274. Accordingly, appellants' first issue is not preserved for our review. See Tex. R. App. P. 33.1.
We overrule appellants' first issue.
Negligence
In their second and third issues, appellants argue that the evidence is legally and factually insufficient to support the jury's negative answer to question one, "Did the negligence, if any, of [John Martinez] proximately cause the injury in question?" Appellants assert that "[t]he evidence established that prior to the impact with [appellants'] vehicle, [Martinez] was aware of the heavy traffic conditions on this date, that he was attempting to merge into the heavy traffic, that he was looking back and did not maintain a proper lookout and distance from [appellants'] vehicle which he knew was directly in front of him[,] and . . . that [appellants] did nothing to cause the accident."
Because appellants attack the legal and factual sufficiency of an adverse jury finding on which they had the burden of proof, they must demonstrate on appeal that the evidence either conclusively establishes, as a matter of law, all facts in support of the issue (for rendition), or, alternatively, that the jury's adverse finding is against the great weight and preponderance of the evidence (for remand). Jordan, 2007 WL 1119931, at *11; see also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In reviewing a claim that the evidence conclusively establishes liability as a matter of law, we consider evidence and inferences supporting the jury's finding and ignore all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Sterner, 767 S.W.2d at 690. If there is no evidence to support the jury's finding, we must then examine the entire record to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690. In reviewing a claim that a finding is against the great weight and preponderance of the evidence, we consider and weigh all of the evidence and may set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain, 709 S.W.2d at 176. We note that a jury may believe one witness and disbelieve another, and it may resolve inconsistencies in any testimony. Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).
The mere occurrence of a rear-end collision does not present evidence of negligence as a matter of law. Weaver v. U.S. Testing Co., Inc., 886 S.W.2d 488, 490 (Tex. App.--Houston [1st Dist.] 1994, writ denied), overruled on other grounds by State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619 (Tex. 1998). The question of whether an automobile being struck from the rear raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of the particular case. DeLeon v. Pickens, 933 S.W.2d 286, 289 (Tex. App.--Corpus Christi 1996, writ denied).
Here, the evidence and inferences supporting the jury's finding that Martinez was not negligent consisted of Martinez's testimony that he maintained a proper lookout prior to the collision and was driving in a prudent manner, considering the traffic conditions. Martinez also explained that, because of the traffic situation, he was unable to see what was occurring in front of appellants' truck. The jury may well have believed that Martinez was acting reasonably in looking back over his left shoulder to see if he could change lanes safely. Thus, the evidence does not conclusively establish, as a matter of law, that Martinez's negligence, if any, proximately caused appellants' injuries.
In regard to the factual sufficiency of the evidence, Martinez did testify that he frequently used the entrance ramp and was aware of the typical traffic conditions. Jose Ortiz testified that he stopped his truck "with sufficient time" prior to the collision with Martinez, and Martinez acknowledged that he thought that it was necessary for appellants to stop their truck in order to avoid a collision with the car in front of them. Martinez also explained that he did not think that the collision was "unavoidable" and felt that he was responsible for the collision. However, as noted above, Martinez also testified that he had kept a proper lookout and drove his car in a prudent manner, considering the traffic conditions that morning. We cannot conclude that the jury's finding that the negligence of Martinez, if any, did not proximately cause appellants' injuries is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Accordingly, we hold that the evidence is legally and factually sufficient to support the jury's negative answer to question one.
We overrule appellants' second and third issues.
Conclusion
Having held that the evidence is legally and factually sufficient to support the jury's negative answer to question one, regarding Martinez's liability, we need not address appellants' fourth and fifth issues, concerning the jury's zero damages findings. (3)
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
1. 2. 3.