Brown v. Gonzales

• Decision Date: 09 February 1983
• Docket Number: No. 16766,16766
• Citation: 653 S.W.2d 854
• Parties: Jeffrey C. BROWN, Appellant, v. Wayne GONZALES, Appellee.
• Court: Texas Court of Appeals

Page 854

653 S.W.2d 854

Jeffrey C. BROWN, Appellant, v. Wayne GONZALES, Appellee.

No. 16766.

Court of Appeals of Texas,

San Antonio.

Feb. 9, 1983.

Rehearing Denied May 11, 1983.

Pat Maloney, George LeGrand, San Antonio, for appellant.

Thomas H. Crofts, Ann Livingston, Groce, Locke & Hebdon, San Antonio, for appellee.

Before CADENA, C.J., and CANTU and TIJERINA, JJ.

OPINION

CANTU, Justice.

This appeal originates as a result of an unfavorable judgment in a lawsuit growing out of a water-skiing accident in which appellant Jeffrey C. Brown, plaintiff below, was struck by a boat owned by his stepfather and driven by appellee Wayne Gonzales, defendant below and long time friend of appellant.

Appellant, appellee and other friends spent the afternoon of October 21, 1978 at appellant's stepfather's lake house on Lake Placid near Seguin, Texas. Both appellant and appellee were drinking during the day and taking turns piloting the boat while trailing skiers up and down Lake Placid.

Late that afternoon, appellant decided to go for one final round of skiing and asked appellee to operate the boat. After skiing for a while appellant had an uneventful fall. Appellee slowed the boat to an idle facing it down stream and away from the fallen skier. Appellee suddenly accelerated the boat, made a sharp u-turn, and ran over appellant who was floating in the water. Appellant sustained serious injuries to various parts of his body including the chest wall, internal organs, arms and both legs.

Appellant sued appellee alleging several negligent acts, including allegations that appellee:

1. ... operated the motorboat in a willful, reckless and negligent manner so as to endanger the life and limb of the plaintiff, in violation of Section 31.094 of the Texas Water Safety Act;

2. ... operated the motorboat at a greater speed than was reasonable and prudent under the circumstances, then existing, in violation of Section 31.095 of the Texas Water Safety Act;

3. ... operated the motorboat in a careless and imprudent manner in proximity of the plaintiff, thereby endangering the life and limb of the plaintiff, in violation of Section 31.103(b) of the Texas Water Safety Act;

4. ... failed to keep a proper lookout for the safety of the plaintiff in the area,

and

5. ... failed to properly turn the boat either to the right or to the left.

Appellant also sued Sea Ray Boats, Inc., Don's Marine, Inc., and Mercury Marine, parties connected with either the boat's manufacture or its sale. Liability against these parties was predicated upon alleged defective design.

Appellee answered denying he was negligent and alleged that the appellant's negligence, a defective boat design, or both, were causes of the accident. Appellee also cross-claimed against Sea Ray Boats, Don's Marine, Inc. and Mercury Marine alleging defective design and seeking indemnity or contribution.

Before trial appellant entered into settlement agreements with Sea Ray Boats, Don's Marine, Inc. and Mercury Marine. Appellant amended his petition to allege only the negligence of appellee as the cause of the accident. In response, appellee amended his cross-claim to seek contribution or indemnity in the form of a reduced judgment by reason of the alleged defective design. Mercury Marine was non suited as a party while Sea Ray Boats and Don's Marine, Inc. remained in the lawsuit as cross-defendants.

In response to special issue number 1 the jury answered that appellee was not negligent in the speed with which he operated the boat, not negligent in keeping a lookout, not negligent in failing to pull back the throttle and not negligent in failing to turn the boat and avoid hitting appellant.

In response to special issue number 2 the jury found that the boat in question was not defectively designed.

In response to special issues numbers 4 through 6 the jury found from a preponderance of the evidence that appellant failed to properly instruct appellee in the operation of the boat, and that such failure was negligence which was a proximate cause of the accident.

In response to the damage issues, the jury found that appellant had incurred past and future medical expenses but no other damages. Based upon these findings, the trial court rendered a take nothing judgment against appellant.

By his first point of error appellant contends the trial court erred in overruling his motion for new trial because the evidence was sufficient to show that appellee was negligent as a matter of law, such negligence being the proximate cause of appellant's injuries. By his second point of error appellant contends there is no evidence to support the jury finding as to the lack of negligence on the part of appellee. By his third point of error appellant contends the answers of the jury to special issue number 1, finding no negligent conduct on the part of appellee, are so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and unjust.

In reviewing appellant's point of error three, a factual sufficiency challenge, we are guided by the principle that all of the evidence in the case must be considered and weighed. Weighing all the evidence, we may not set aside the jury verdict unless we conclude that it is so against the great weight and overwhelming preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

A review of appellant's point of error two, a "no evidence" point, requires us to view the evidence in the light most favorable to the verdict. Thus we must discard all adverse evidence and consider only the evidence which supports the verdict of the jury. Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938 (1959).

According to appellant, we are to examine his first point of error applying the test enunciated in Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.--San Antonio 1951, no writ) an automobile collision case. The test adverted to therein is as follows: "If reasonable minds can differ as to the inferences and conclusions to be drawn from the undisputed evidence, the case is one for the jury. If reasonable minds cannot differ, then an issue of law only is presented." The foregoing test recognizes that negligent conduct may be excused by some extenuating circumstance or condition and if the evidence raises the issue of excuse even though accompanied by undisputed evidence, the question is one of fact unless from all the evidence reasonable minds can draw but one inference or conclusion.

Although appellant's point of error one is presented in an unconventional manner we shall pass on its merits in light of the argument and authorities offered in support. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976) recalled 551 S.W.2d 32. A close consideration of the contention shows that appellant's point of error is tantamount to a "no evidence" challenge. This is readily apparent from appellant's argument in support of the proposition seeking to convince us that there were no extenuating circumstances which excused the alleged negligence of appellee. We shall consider only that evidence which buttresses the jury finding that appellee was not negligent. In re King's Estate, supra.

In arriving at its findings, the jury is entitled to evaluate the facts proved and the inferences to be drawn, so long as the inferences are reasonable. It is within the jury's province to judge the credibility of the witnesses and the weight to be given their testimony. The jury must also resolve conflicts and inconsistencies in the testimony of any one witness, as well as in the testimony of different witnesses. Jurors may believe one witness and disbelieve another, or believe part of the testimony of a witness and disbelieve any other part. Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616 (1944); Clodfelter v. Martin, 562 S.W.2d 491 (Tex.Civ.App.--Corpus Christi 1977, no writ).

Appellant's presentation of the facts relating to the accident consisted of testimony of six individuals who were present when the accident occurred. Only appellant and appellee testified in person. The other four witnesses' testimony was presented by having their depositions read into evidence. The deposition witnesses were Karen Stieren, a passenger in the boat, H.D. Steubing, Eugene Hohon and Albert Hurst, three individuals who witnessed the incident from the shore. Each witness was asked to describe the accident. Neither appellant nor appellee was able to shed much light on the events leading up to the accident. In addition to appellee's live testimony, portions of a recorded telephone conversation made shortly after the accident were introduced by appellant. Appellee's deposition was also read to the jury as were answers to interrogatories propounded to appellee.

Testifying as an adverse witness at the trial, appellee admitted that after appellant fell he did not know if he lost sight of appellant. He could not remember how many times he had circled appellant, or whether appellant had hold of the ski rope as the boat was turning. Appellee remembers accelerating the boat to pull appellant out of the water but did not know the boat's direction as it began to accelerate. Nor could appellee estimate the speed of the boat at the time of the accident, although he thought he was going a little past idle. Appellee did not know if appellant ever got up on his skis. Basically, appellee stated he did not know what happened.

When viewed in total, appellee's testimony is admittedly conflicting. During live testimony appellee claimed his view was obstructed because of the way the boat was functioning. His deposition and answers to interrogatories likewise claimed an obstruction. Appellee acknowledged that his earlier telephone statement was in direct conflict with his later position regarding obstruction. The prior statement acknowledged that he had no trouble with the boat in turning around. However, other live testimony ascribed steering...