dissenting.
Because I disagree with the majority’s disposition of two points, I dissent.
Marital Discord
I agree that the testimony about Cook’s marital discord should have been excluded under Rule 403. TexR.Evid. 403. However, I disagree with the majority’s holding that the error did not likely cause the rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1). I think the testimony “controlled the judgment” as evidenced by the jury’s refusal to find liability. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).
The majority relies on the evidence of other activities performed by Cook as inconsistent with his alleged injuries to say that the evidence of spousal abuse was not “dominant.” If the result of this lawsuit was a finding of liability but no damages, I would agree that the testimony regarding Cook’s other activities (riding a tractor, lifting fifty pound sacks of feed, knocking pecans out of a tree) would be as likely or more likely to have “controlled the judgment.” However, *113considering that the jury never reached the question of damages, I cannot see how evidence regarding Cook’s injuries or lack thereof renders harmless an error that appears to have affected the jury’s determination of liability.
Sabio’s Liability
The jury’s negative answer to the broad-form question regarding liability represents a refusal to find from a preponderance of the evidence that Sabio’s negligence proximately caused Cook’s fall. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Dealers Elec. Supply v. Pierce, 824 S.W.2d 294, 294-95 (Tex.App.—Waco 1992, writ denied). Examining the entire record, I would find that the failure to find negligence and proximate cause is so against the great weight and preponderance of the evidence as to be manifestly unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Caterpillar Tractor Co. v. Cropper, 767 S.W.2d 813, 816 (Tex.App.—Texarkana 1989, writ denied) (on remand).
As stated in the majority opinion, Sabio was aware, through its employees, that salt water constantly spilled out from the tanks, corroding and weakening the steps. It is undisputed that Buddy Martin, as field superintendent, was responsible for maintaining the steps involved in Cook’s accident. He testified that, prior to Cook’s fall, he knew the steps were weak and believed that they were dangerous. Despite the majority’s statement that Martin reinforced the steps “prior to Cook’s fall,” this is far from the deposition testimony. At one point Martin seems to say that he reinforced the steps prior to the accident but at another time states that he is unable to say whether those repairs were made before or after Cook’s fall. He was also unable to remember whether every step which needed reinforcement was attended. Furthermore, he had no idea whether an attempt had been made to reinforce the particular step which caused Cook’s fan.
Although it was Martin’s “job” to keep the stairs safe, he had no routine for repairing the stairs, and in fact testified that they had undertaken to repair only a few stairs one time, and that no other work was ever done to ensure the safety of the steps. On that one occasion, Martin determined which steps to reinforce by “stomping” and “kicking” them to see if they would hold. If a step did not “bend” under the pressure of his weight, the step was not reinforced. Martin testified that he had no idea how many steps had been repaired, but that it was done in the course of one day.
It is undisputed that the steps were “rotted out because of salt water.” When Martin was asked whether he felt the steps were acceptable after he had fixed them, he stated, “Yes. After we’d fixed them then and they were, but I can’t tell you when we fixed them. I don’t know whether it was before or after or what. I don’t know.” Martin was asked, “When you walked up those stairs, if you had noticed that there was a step that was going to give way if somebody stepped on it, what would you have done?” He responded that he should have replaced those steps, but he did not. Instead, when he saw a step in that type of condition, he just stepped over it. He stated that he had seen a hole in one of the steps where Cook fell, but he still considered it “stabile.”
In the face of these admissions, I think that a failure to find any negligence on Sa-bio’s part is against the great weight and preponderance of the evidence. Cropper, 767 S.W.2d at 816. It is undisputed that Martin carried the responsibility of keeping the steps in a safe condition. Martin and other Sabio employee’s knew of and appreciated the danger. The majority states that because Martin “believed” the steps were safe at the time of the accident (which is questionable when the deposition testimony is read as a whole) and because no one “complained” about the condition of the stairs, the jury’s finding of no liability is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Sabio, through its employees, failed to remedy an unreasonably dangerous condition of which it had actual knowledge. This meets the definition of “negligence” as given to the jury. Further, because it is undisputed that the steps collapsed under Cook because they were weakened by the salt water, there can be no *114question about proximate cause. I would reverse the judgment and remand the cause for a new trial. Dyson, 692 S.W.2d at 457.