dissenting.
Appellant’s complaints are that there is no evidence or, in the alternative, insufficient evidence to support the jury finding that appellant was guilty of negligence proximately causing the accident in question.
Under appellant’s “no evidence” point, the majority correctly considers only the evidence, and the inferences reasonably drawn therefrom which, when viewed in the light most favorable to support the findings, support the verdict.
The testimony of Solis was merely that when appellant cried out to warn him of the impending collision and started moving away from the side of the car which was about to, and did, receive the full brunt of the impact, he was “distracted” and reached out toward her, taking his hand from the steering wheel. Because of this distraction or diversion, he was prevented “from doing the things that [he] ordinarily would have done in turning” his automobile, and caused him “to do things that [he] ordinarily would not have done.” He stated that it was his “position” that appellant “was involved, in some way, in causing this accident.”
In order to hold that such testimony is evidence that appellant was guilty of negligence proximately causing the accident, we must make several assumptions. First, we must infer that there was something which Solis could have done to avoid the accident but for the diversion or distraction. There is no testimony that Solis could have taken any particular evasive action or done anything to avoid the collision after appellant warned him of the danger. The only thing which Solis did which he would not otherwise have done was to take his “hand” off the steering wheel. There is no evidence that this action in any way caused the accident. Solis did not testify that he lost control of his vehicle, and there is no evidence that at the time of the collision, or before the collision, the Solis vehicle was out of control. Did the distraction prevent him from applying the brakes? There is no *63evidence which supports such inference. Would he have accelerated in order to remove his vehicle from the path of the oncoming Garcia truck? He did not say so, nor is there any other evidence suggesting such possibility. Would he have turned to the right, or to the left, or started to back up and thus avoid the collision? There is no testimony which supports these inferences or any one of them. Viewing the evidence in the light most favorable to the verdict and ignoring all evidence tending to support a conclusion different from that reached by the jury, the result, nevertheless, is that appellant was not guilty of any negligence which was even the cause in fact of the accident. Under these circumstances, it cannot be said that she was guilty of any negligence which was the proximate cause of the collision.
In effect, all that the evidence reflects is that it was the “position” of Solis that appellant, “in some way”, was “involved ... in causing the accident.” In effect, giving the greatest possible effect to the self-exculpatory statements of Solis, his position is, simply stated: “It was her fault. If she had not warned me of the danger or moved away from the point of impact, I would have done something to avoid the collision, or I would not have done something which I did.” He doesn’t tell us what he would have done or what he would have avoided doing.” To conclude that such testimony is some evidence that appellant’s conduct was somehow the cause of the accident amounts to more than engaging in mere speculation and surmise. It amounts to sheer fantasy. A jury finding cannot be based on speculation or surmise. It certainly cannot rest on fantasy.
The conclusion of the majority that the finding is not based on insufficient evidence is supported only by the naked statement that the entire testimony has been examined. The only evidence referred to in the majority opinion is that which, in the opinion of the majority, would support the verdict if all contrary evidence is disregarded. An examination of the entire testimony reveals the following:
1. Garcia, the driver of the other vehicle, testified that the Solis vehicle, suddenly and without warning, turned to the left directly in front of him, giving him no time to do anything to avoid the collision. He did not know who was driving the Solis vehicle and did not know what was occurring inside the vehicle. This is certainly not sufficient evidence to support a finding that appellant did anything which caused the collision.
2. Solis testified that as he was proceeding in an easterly direction on Highway 90, he and appellant decided they should return to the place from which they had set out originally. In order to do this, he decided to make a left turn into a clinic which was approachable by a driveway, thus enabling him to change his direction and proceed upward to the west. He was familiar with that portion of Highway 90 and knew that he was approaching the site of a clinic, located on the left of the highway, onto which led a driveway. He knew that the driveway leading to the clinic had a “dip” or “bump” which required that a vehicle entering the driveway do so at a reduced speed in order to avoid damage to one’s vehicle.
3. As he approached the spot where he would have to make a left turn, he noted that approaching headlights indicated that two vehicles were travelling side-by-side in the two westward bound lanes. He testified that the vehicle in the outside western bound lane, the Garcia truck, was travelling in excess of 40 miles per hour.
4. Before he reached the point at which he began his turn to the left, intending to go across the highway onto the driveway leading to the clinic parking lot, he slowed his vehicle. Before he began the left turn, he was travelling at a speed of 35 miles per hour. He slowed down in order to make the turn and because he knew that, due to the bump or dip in the driveway, he could not avoid damage to his vehicle without slowing down.
5. At the time he began his turn to the left, the Garcia vehicle, approaching at a speed in excess of 40 miles per hour, was *64about 20 to 30 yards away. He had completed his turn and the front part of his vehicle was on the driveway and off the highway at the time that appellant shouted her warning and began to move away from the side of the car which was going to be struck.
6. As his vehicle came onto the highway, he stepped on the brakes in order to further reduce his speed as he approached the bump or dip in the driveway. He did not realize at that time that the rear end of his vehicle was still on the westbound lane of the highway. At this point, appellant shouted her warning and moved away from the passenger side of the vehicle toward him.
7. When his vehicle was on the driveway, he was looking straight ahead toward the driveway and the parking lot onto which the driveway led and was not looking to his left to observe the oncoming traffic headed in a westerly direction.
8. Appellant at no time touched him or the steering wheel of his vehicle.
9. When appellant shouted the warning, he turned his head to the left, in the direction of the oncoming traffic, and “reached” for appellant.
10. After appellant shouted her warning, Solis did not attempt to do anything different from that which he was doing. He merely continued driving “through the hump.” His vehicle did not come to a stop before the collision.
11. He did not attempt to accelerate when appellant warned him of the danger. He did not testify that appellant’s actions prevented him from accelerating. Instead, he testified succinctly concerning his failure to accelerate after appellant had warned him. He said: “If you step on the gas, all you’re going to do is run your car into the — because it goes like this, when you go down like that. You step on the gas, all you’re going to do is hit the back or hit the front.” The record suggests no other explanation for his failure to “step on the gas” after appellant’s warning shout.
12. The impact occurred immediately after appellant’s warning shout. He did not have time to do anything after she warned him of the impending collision.
We may accept as truth the statement from Solis that appellant’s actions “distracted”. But, it is clear that in the absence of such distraction, he would have continued doing what he was doing, slowing down as he approached the hump or dip, looking straight ahead toward the driveway and parking lot, away from the oncoming traffic, unaware of any danger and unaware that part of his vehicle was jutting out onto the highway in the lane in which the Garcia vehicle was approaching him at a speed in excess of 40 miles per hour. It is abundantly clear that if plaintiff had not been in the car, Solis would have done nothing to avoid the accident, because he was completely unaware of the danger of a collision. Clearly, ignorant of the proximity of the oncoming vehicle, he would not have accelerated, because he did not want to approach the dip or bump except at a reduced speed which to avoid “messing up” the rear or front end of his vehicle.
It cannot be said that the evidence justifies the conclusion that appellant’s instinctive reactions to the impending collision prevented Solis from doing something to avoid the accident or caused him to do something which was a cause of the accident. If we give full credence to the claim of Solis that appellant’s actions “distracted” or “diverted” him, the conclusion is unavoidable that he was distracted or diverted only from continuing to do what he was doing before such distraction. That is, he was distracted from looking straight ahead toward the driveway and parking lot, unconcerned about oncoming traffic, and applying the brakes to avoid “messing up” his vehicle.
It is not necessary to determine whether appellant would have been negligent if she had failed to warn Solis of the danger of which she was aware and of which he was ignorant because of his preoccupation with slowing his vehicle and his lack of knowledge that part of his vehicle was still on the highway. See 7A Am.Jur.2d Automobiles and Highway Traffic § 596.
*65I would hold that there is no evidence that appellant was guilty of any negligence proximately causing the accident. Cf. Griner v. D. & L. Well Service, 324 S.W.2d 231, 234 (Tex.Civ.App. — Beaumont 1959, writ ref’d n.r.e.). In any event, it is clear that the jury’s finding concerning appellant’s negligence and its proximate connection to the accident is not supported by sufficient evidence.