ON MOTION FOR REHEARING
GONZALEZ, Justice,concurring and dissenting.
I concur with the court’s opinion to the extent that it reverses the judgment of the court of appeals. However, I do not agree that causation was proved as a matter of law; nor do I agree that the judgment should be rendered. Moreover, Respondent asserted points of error in the court of appeals which were not ruled on by that court and which, if sustained, would require a reversal of the judgment and a remand for new trial. Under McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964), the respondent is entitled to have these points considered by the court of appeals. See also Luna v. Southern Pacific Transportation Co.,—S.W.2d —, 30 Tex.Sup.Ct.J. 132 (Jan. 7, 1987). I would grant the motion for rehearing and remand this cause to the court of appeals.
The court bases its rendition on its holding that producing cause was established as a matter of law. In order to reach this result, the court discounts the evidence that Magro failed to inform Sanders he was working on the machine and reasons that such evidence is inadmissible unless it rises to the level of habit. This analysis is seriously flawed.
The court cites TEX.R.EVID. 404 to support the proposition that evidence of a single instance of inattentiveness is inadmissible to show the lax judgment of the product user. Rule 404 relates to character evidence used to prove that a person acted *837in conformity with that character on a particular occasion. It is often applied in assault cases when a plaintiff may try to submit proof of prior assaults committed by the defendant as evidence that the defendant committed the particular assault. See, e.g., Burleson v. Finley, 581 S.W.2d 304, 307 (Tex.Civ.App. — Austin 1979, writ ref’d n.r.e.). However, Rule 404 has no applicability when character is itself a fact in issue. 2 R. Ray, Texas Law of Evidence § 1501 at 187 (Texas Practice 3d ed. 1980); N. Blakely, Article IV: Relevancy and Its Limits, 20 Hous.L.Rev. 151, 202 (1983 Tex.R.Evid.Handbook). In such circumstances, TEX.R.EVID. 405(b) applies.
Rule 405(b) allows for evidence of specific instances of conduct when character is an essential element of a charge, claim or defense. For example, in a negligent en-trustment case, the plaintiff must show that the driver entrusted with the car was a characteristically reckless driver. Hines v. Nelson, 547 S.W.2d 378, 385-86 (Tex.Civ. App.—Tyler 1977, no writ). The driver’s trait of recklessness is an essential element of the plaintiffs claim and therefore evidence of specific instances of reckless driving are admissible. See N. Blakely, at 202; see also 2 R. Ray, Texas Law of Evidence § 1502 (Texas Practice 3d ed. 1980).
The situation in this case is analogous to a negligent entrustment case in that a character trait is an essential fact in issue. The law provides a presumption that if an adequate warning had been given, the user of the product would have read and heeded it. Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex.1972); see also Restatement (Second) of Torts § 402A, comment j (1965). The manufacturer can rebut this presumption by showing that the user was “irresponsible or lax in judgment.” Technical Chemical Co., 480 S.W.2d at 606. Thus, the user’s character for irresponsibility or lax judgment is precisely the fact on which the manufacturer’s defense hinges; it is an essential element of the defense. Therefore, TEX.R.EVID. 404 is inapplicable and instead TEX.R.EVID. 405(b) expressly permits evidence of single instances of conduct.
Moreover, even if the court were correct in reasoning that Rule 404 should have made the evidence inadmissible, the Rule alone cannot negate the evidence at this stage in the appellate process. At trial, the evidence was admitted without objection; therefore there is no basis for this court to now strike it. Even on appeal, Magro has never argued that the evidence was inadmissible. Yet, this court on its own not only decides that the evidence of Magro’s inattentiveness should have been inadmissible, but then proceeds to entirely discount the evidence, apparently reasoning that if it should have been inadmissible at trial it can be stricken on appeal even though error was not preserved.
Because Rule 404 is inapplicable and because in any event there was no objection to the evidence, we should not simply ignore Magro’s testimony that he did not inform Sanders he was working on the machine. Moreover, there is other evidence that should preclude this court from holding that producing cause was established as a matter of law because it is evidence from which a jury could infer that a warning would not have prevented the accident. Judd Clayton, plaintiff’s expert witness, testified that it would not be a good practice to have the machine operator remove the key and place it in his pocket; instead Clayton recommended that the key be placed on a nearby hook. From this testimony, a jury could infer that even if the key were removed, an inattentive operator might take it off the hook and use it anyway. Ragsdale’s manager of engineering, Peter Mandell, testified that the keys to different machines within the plant were interchangeable and that an operator could easily use another key in the machine if the first one were removed. Mandell also testified that in his opinion a warning would not have prevented the accident with Magro. In light of the above evidence, I cannot agree with the court’s conclusions that no evidence rebutted the Technical Chemical Company presumption and that producing cause was established as a matter of law.
*838I do, however, agree that the decision of the court of appeals must be reversed. The court of appeals held that the evidence was factually insufficient to support the jury’s finding on producing cause. Although this court does not have jurisdiction over fact questions, we may take jurisdiction to determine whether a court of appeals applied the correct standard in reviewing a factual sufficiency point. Pool v. Ford Motor Co,, 715 S.W.2d 629, 634-5 (Tex.1986). In this case, the court of appeals stated the appropriate standard of review, but then failed to apply that standard.
In its opinion, the court of appeals cited only two pieces of evidence that it deemed to be contrary to the jury’s finding. These were Sanders’ testimony that he was not paying attention to Magro and the evidence that Magro joined the clean-up operation without telling Sanders. The court did not explain why this evidence outweighs the evidence in support of the verdict.
Instead of pursuing a discussion of the facts, the court of appeals embarked on a discussion of products liability law, concluding with a quotation by Dean Keeton on misuse as a sole producing cause. It is not clear what relevance misuse has to the court of appeals’ review of the factual sufficiency of the evidence to support the jury’s finding on producing cause. Misuse was not before the jury and the court of appeals is not empowered to find such a fact on its own. It is apparent that the court of appeals erroneously blended the defense of misuse with its factual sufficiency review.
Thus, not only did the court of appeals fail to adequately address the evidence in the record, but it also incorporated discussion of an issue totally irrelevant to reviewing the factual sufficiency of the evidence to support the finding made by the jury. I would therefore reverse the court of appeals’ judgment and remand this cause to that court with an instruction to review the factual sufficiency of the evidence by adhering to the guidelines set forth in Pool. In this connection, it might be helpful to point out that courts of appeal are not free to judge the credibility of the witnesses.
I wish that we could correctly render judgment in this cause and be done with it since this accident occurred approximately five years ago. However, the train toward justice is admittedly slow sometimes. Nonetheless, in order to effect a rendition, the court has disregarded well established precedent and has concocted new doctrine that effectively eviscerates the defense of lax judgment used in a warning case to refute the presumption that a product user would have read an adequate warning. This concoction may work great mischief down the line. By erroneously applying TEX.R.EVID. 404 so as to exclude evidence, the court deprives the manufacturer of the opportunity to present evidence on the very issue that constitutes its defense. Not only is this unjust, but it is not in accord with the express provision of TEX. R.EVID. 405(b). Rendition of judgment is inappropriate; I would grant the motion for rehearing and remand the cause to the court of appeals.