Guzman v. Guajardo, 13-87-273-CV

• Decision Date: 23 November 1988
• Docket Number: No. 13-87-273-CV,13-87-273-CV
• Citation: 761 S.W.2d 506
• Parties: Jose Santos GUZMAN, Appellant, v. Eduardo GUAJARDO and Lydia Castro, Individually and as Representatives of the Estate of Eduardo Castro, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 506

761 S.W.2d 506

Jose Santos GUZMAN, Appellant, v. Eduardo GUAJARDO and Lydia Castro, Individually and as Representatives of the Estate of Eduardo Castro Deceased, Appellees.

No. 13-87-273-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 23, 1988.

Rehearing Denied Dec. 22, 1988.

Robin W. Welch, McAllen, for appellant.

Ramon Garcia, Felipe Garcia, Jr., Edinburg, for appellees.

Before DORSEY, UTTER and SEERDEN, JJ.

OPINION

DORSEY, Justice.

Eduardo Guajardo and Lydia Castro, appellees, brought a wrongful death action ¹ against appellant, Jose Guzman, and his employer, Ed Payne Motor Company, Inc., and Payne Farms. Appellees alleged that appellant, while acting in the course and scope of his employment with Payne, was negligent in the operation of a motor vehicle and proximately caused the death of their seven-year-old son, Wally.

At the conclusion of the plaintiffs'/appellees' case-in-chief, the court issued a take-nothing directed verdict in favor of Ed Payne Motor Company and Payne Farms. Following the completion of the evidence, the jury found that appellant caused Wally Castro's death by negligently 1) driving at an excessive speed, 2) failing to keep a proper lookout, and 3) failing to take proper evasive action. The jury awarded appellees various damages totaling $1,570,000.00. Appellant challenges the sufficiency of the evidence by fourteen points of error. We affirm.

By his first through fourth points, appellant contends there is no evidence or, in the alternative, insufficient evidence to support the jury's negligence and proximate cause findings. In considering a "no evidence", "insufficient evidence" or "against the great weight and preponderance of the evidence" point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960). In Pool, the Texas Supreme Court held that an appellate court must "clearly state why the jury's finding is so factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust; why it shocks the conscience." Pool, 715 S.W.2d at 635.

At trial, appellant testified that on September 3, 1985, he was traveling north on Texas Avenue, a two-lane road with paved shoulders located in Weslaco, Texas. The speed limit was 45 miles per hour. While driving "30 to 35 miles" per hour, appellant pulled over from the traffic lane on to the shoulder in order to let another vehicle pass. At that point, he noticed three small children, two of whom were on bicycles, standing between the lanes of traffic. While he initially stated that the children were "about a block away" when he first sighted them, he later admitted that he "could not figure distance." The two boys on bicycles started to cross the road in an easterly direction, but then went back toward the median. The third boy, Wally Castro, proceeded to run towards the eastern shoulder of the road. Appellant stated that Wally was "very close" to his truck when he began running. He testified he applied his brakes and skidded, but could not avoid striking the child.

Weslaco Police Officer Medaro Pena was the first to arrive at the scene of the accident. According to his measurements, the right skid mark was 36 feet long and the left skid mark was 26 feet long. Both were slanted in a northeasterly direction. Pena stated that appellant told him that the impact had occurred at a point very close to the northern end of the right skid mark, and that Wally's body had been found behind the truck approximately 13 feet from the edge of the shoulder. Pena's investigation also revealed that appellant's truck traveled another 62 feet forward after striking the child. Pena expressed the opinion that appellant was not traveling in excess of the 45 mile per hour speed limit at the time of the accident.

Sylvia Anciso was a passenger in the car traveling directly behind appellant's truck at about "35 to 40" miles per hour. She testified that the truck appeared to be going "about the same" speed. Upon seeing the three children, she and her mother-in-law, who was also a passenger in the car, told the driver, Miguel Anciso, to slow down. Just before the accident, appellant's truck slowed down and went "toward the shoulder" as another car passed it. Mrs. Anciso estimated that the boy was two car lengths from the truck when he darted across the road. After appellant hit his brakes, Anciso saw the truck skid and turn slightly sideways as it struck the child. In her opinion, appellant "did everything he could" to avoid the accident.

The videotaped deposition of Miguel Anciso was also played for the jury. Mr. Anciso essentially corroborated his wife's testimony, although he estimated that Wally was only 15 to 20 feet in front of Appellant's truck when he began to cross Texas Avenue. He also added that he witnessed Wally's body pass underneath the truck after impact.

The only other eyewitness was sixteen-year-old David Garcia, who testified that Wally was "about a car length" from the truck when he ran in front of it. Garcia was 30 yards from the accident when he saw it occur.

The testimony of accident reconstructionist Tony Cordoba formed the crux of appellees' case. Cordoba stated that based on the skid mark measurements, the location of the point of impact (as told to him by Officer Pena), and the distance which the truck traveled after impact, he calculated that appellant was driving 41.55 miles per hour before he applied his brakes. Taking into account appellant's speed, reaction time, lag time, and the length of the skid, Cordoba also estimated that appellant was 87.82 feet away from Wally when he first realized he would have to try to avoid a collision. Cordoba concluded that appellant had sufficient time in which he could have effectively taken evasive action by swerving his vehicle sharply to the right so as to avoid striking Wally.

Appellant rebutted Cordoba's testimony by calling to the stand McAllen Police Officer Reynaldo Lopez. In Lopez's opinion, Cordoba's estimation of 87.82 feet was too high because it assumed that appellant's truck was equipped with radial tires when it actually had bias ply tires; bias ply tires, according to Lopez, have a lower "coefficient of friction" which would call for a final distance under 87 feet. Lopez also pointed out that the angle of the skid marks indicates that appellant did, in fact, steer his truck to the right before braking. Lopez calculated appellant's speed at "31 to 32 miles per hour."

Negligence requires the presence of three elements: 1) a duty on the part of one person to another; 2) a breach of that duty; and 3) harm to the person to whom the duty is owed as a proximate result of the breach. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975).

The jury's three-part negligence finding is based first on the conclusion that appellant was "driving his vehicle at a greater rate of speed than a person using ordinary care would have driven" under the circumstances, i.e., while children were standing in the middle of a busy, two-lane highway. The evidence of speed was elicited from appellant ("30 to 35 miles per hour"), Reynaldo Lopez ("31 to 32 miles per hour"), Sylvia Anciso ("35 to 40 miles per hour"), and Tony Cordoba (41.55 miles per hour). Regardless of which witness the jury believed, we are unable to conclude that the findings of excessive speed and proximate cause are manifestly unjust in view of the dangerous circumstances in which appellant found himself immediately prior to the accident.

The jury also found appellant did not "keep such a lookout as a person using ordinary care would have kept" and failed to "swerve or turn his vehicle to the right before the occurrence in question."

Appellant testified initially that he was "about a block away" from the children when he first saw them in the center of the road. Counsel then read portions of appellant's deposition which revealed that he had previously stated that the children were "half a block" or "about 50 feet" away when he sighted them. Appellant later admitted he had trouble figuring distances. The jury could have concluded from this inconsistent testimony that appellant was not keeping a proper lookout.

On the issue of evasive action, the length of the skid marks and the location of the impact point indicate appellant had at least 36 feet in which to maneuver his truck out of Wally's path. Experts on both sides testified that the angle of the skid marks shows that appellant steered his vehicle slightly to the right before applying his brakes. However, given that there were no guard rails on the shoulder of the road, the jury was justified in finding that appellant's failure to sharply swerve his truck to the right was negligence and was a proximate cause of Wally's death. We overrule points one, two, three and four.

Appellant argues by his fifth point of error that the jury's failure to find that Wally Castro was negligent, in response to Special Issue No. 5, was so against the great weight and preponderance of the evidence as to be manifestly unjust.

A negative answer to a special issue amounts to nothing more than a failure or refusal by the jury to find from a preponderance of the evidence the facts which the proponent sought to prove. Ergon Inc., v. Dean, 649 S.W.2d 772, 779 (Tex.App.--Austin 1983, no writ). This Court has the authority to review a jury's "failure to find" in the same manner in which it may review a jury's findings. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Where the negligence of a child above the age of...