Valdez, Priscilla R. v. City of Monahans and Amado Carrasco Valenzuela--Appeal from 143rd District Court of Ward County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PRISCILLA R. VALDEZ,

Appellant,

v.

CITY OF MONAHANS and

AMADO CARRASCO VALENZUELA,

Appellees.

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No. 08-02-00069-CV

Appeal from the

143rd District Court

of Ward County, Texas

(TC# 01-03-19912-CVW)

MEMORANDUM OPINION

Priscilla R. Valdez appeals a take-nothing judgment in her lawsuit against the City of Monahans and Amado Carrasco Valenzuela stemming from a motor vehicle collision. We affirm.

Facts

On the afternoon of August 12, 1999, a garbage truck driven by Amado Carrasco Valenzuela and a 1994 Buick driven by Priscilla R. Valdez collided on C Street in the City of Monahans. This litigation resulted from Valdez=s suit against Valenzuela and the City of Monahans for negligence.

Valenzuela is a sanitation worker for the City of Monahans. As part of his regular rounds, Valenzuela was on C Street emptying a dumpster. Because of the position of the dumpster and the design of the truck, Valenzuela had to maneuver his vehicle next to the dumpster such that it faced oncoming traffic. The street is a residential street and without much traffic. The garbage truck itself is fifteen feet wide, which leaves fourteen and a half feet protruding out into the road. Without explaining how wide the road is, Valenzuela testified that a car could pass by, but it would be Atight.@ Any traffic that was traveling eastbound would need to pull into the westbound lane to get around the garbage truck. On the back of the truck is a flashing strobe light that is on all day while the truck is in operation. Valenzuela also testified that he routinely activates his turn signal or flashers when he parks the truck, but could not remember if he did so on this occasion.

When Valenzuela finished emptying the dumpster, he backed the garbage truck a short distance to avoid a parked vehicle. Although the truck is equipped with side mirrors with wide-view mirrors inset, there are Ablind spots.@ Valenzuela was well aware of these blind spots from his past experience driving the truck. The wide-angle mirrors were wide enough to see any oncoming traffic on the street. Valenzuela checked the mirrors, but did not see anything. As he pulled across the eastbound lane to get into the proper lane of traffic, the garbage truck collided with the car driven by Valdez. Valenzuela testified that he never saw Valdez before the point of impact. Valenzuela also testified that his truck ran into her car, rather than her car running into his truck. He later stated that he really did not know if he caused the contact or if she drifted into him. As he pulled out, the truck was slowly Abarely pulling out.@ He had never had an automobile accident other than the one that day.

After the accident, Valenzuela, Valdez, and her passenger Agathered underneath a shade tree@ and talked. Although he did check to see that she was not hurt, Valenzuela testified that he neither apologized nor made any statement about what may have caused the accident. Valdez testified that when she asked what happened, he responded that he had not seen her. The people in the car told Valenzuela that they were not hurt.

It was determined that the dumpster could not have been emptied without violating the traffic laws by being in the improper lane. Valenzuela was cited at the accident. The citation appears to have been dismissed. Valdez and her sister Rosalinda Ramirez were on C Street that afternoon checking on a rental trailer for her daughter. They were driving her 1994 Buick. Valdez was driving eastbound on C Street and noticed the garbage truck on the south side of the street. She had to pull around him to pass the truck. At the end of the block, she made a U-turn and headed back. She did not notice the truck backing up, a turn signal, or the flashing strobe light. She did see the truck Arolling out.@ She testified that she slowed down, but did not have any indication that he would collide with her. In order to avoid him, she testified, she could not have turned right because of a fence and trees, nor could she have turned left. She applied the brakes, but apparently not in time to avoid a collision. The truck collided with the driver=s side door.

Valdez testified that she was looking at a trailer on the right when the accident occurred. She did not pull over and stop the car, but just continued slowly. The truck driven by Valenzuela was on her left. She noticed people at a house on the right, but did not know what they were doing. She admitted that she may not have seen the light on the truck because she was not looking at the truck, but instead was looking to the side of the road for a sign in the yard. She assumed that the driver of the truck had seen her. She did not honk her horn. She probably did not swerve to avoid him, she testified. She also admitted that if she had been looking straight ahead rather than looking for a real estate sign, she probably would have seen the truck.

That afternoon Ronnie Ramsey was working on the roof of his mother=s house on C Street. At the time of the accident, he was taking a break and was on the ground. He saw that Valdez was driving slowly and was looking at a garage sale at the side of the road, rather than at the road. Her passenger was looking at him. He noticed that the truck had its signal lights on. He testified that he thought Valdez did not even see the truck because she was looking to the side of the road. When asked, AWho hit who?,@ Ramsey responded, AShe actually drifted to him, drifted into him.@ Clarifying, he testified, AShe ran into the truck.@ The jury found that Valdez=s negligence proximately caused the accident, but that Valenzuela was not at fault.

Evidence supports jury verdict

In his sole issue on appeal, Valdez argues that the jury=s verdict finding that Valenzuela was not negligent is against the great weight and preponderance of the evidence. Reviewing the record with the appropriate deference for the jury=s role as fact finder, we cannot agree. Accordingly, the judgment of the trial court is affirmed.

i. Standard of review

As plaintiff, Valdez has the burden of proving that Valenzuela was negligent. When a party attacks the factual sufficiency of an adverse finding regarding an issue on which she had the burden of proof at trial, she must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). To resolve a factual sufficiency challenge, we must consider both the evidence supporting the finding and the evidence supporting a contrary finding. Piatt v. Welch, 974 S.W.2d 786, 789 (Tex. App.--El Paso 1998, no pet.). It is for the jury to determine the weight to be given to the testimony presented and to resolve any conflicts in the evidence. Id. Our judgment cannot be substituted for that of the jury, even if we would find a fact contrary to that found by the jury, provided that the jury finding is supported by the evidence and is not against the great weight and preponderance of the evidence. Id. The jury=s verdict will be overturned only if it is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Id.

ii. Negligence of the City of Monahans not addressed

Much of Valdez=s brief on appeal argues that placement of the dumpster was negligence on the part of the City. Liability for negligence of the City in any capacity other than through the theory of respondeat superior was not part of the original petition to the trial court, nor is it addressed in Question 1 to the jury, the question challenged by Valdez on appeal. For this reason we need not address this argument.

iii. The verdict of the jury is not against the great weight and preponderance of the evidence

The jury found that the negligence of Valdez did proximately cause the accident, but did not find Valenzuela at fault. It is this finding that Valdez challenges. First, Valdez claims that at the very least some negligence must be attributed to Valenzuela because he received a citation at the accident, which should be considered negligence per se. Appellees argue that evidence of a traffic citation is improper for any purpose, and is generally inadmissible in a civil suit growing out of the same incident. DeLeon v. Louder, 743 S.W.2d 357, 360 (Tex. App.--Amarillo 1987, writ denied). Citations are only given for possible violations of penal ordinances or statutes and not for the purpose of establishing fault in civil litigation. Isaacs v. Plains Transport Co., 367 S.W.2d 152, 153 (Tex. 1963).

Determination of who acted negligently in a civil dispute is a question that the courts ask of a jury, not law enforcement. Younger Bros., Inc. v. Myers, 159 Tex. 585, 589, 324 S.W.2d 546, 549 (1959). In this case, evidence of a citation was admitted without objection. However, a mere citation does not constitute negligence per se. Proof of negligence per se requires that the proponent of the theory prove (1) a violation of the penal standard, and (2) that the violation is unexcused. Piatt, 974 S.W.2d at 788-89. No argument concerning the second of these two concerns has been undertaken, thus the citation cannot be considered as negligence per se. Further, negligence per se was not pleaded in the plaintiff=s petition to the trial court. There is also evidence that the citation may have been dismissed.

Second, Valdez argues that Valenzuela openly admitted that he was the one that ran into Valdez=s vehicle and that he never saw her until the impact. This, she argues, should establish at least some negligence on his part. However, Valenzuela admitted that he really did not know whether he caused the contact or if she drifted into him. Testimony from Ramsey, the only independent witness, indicates that Valdez drifted into Valenzuela, causing the accident while she was looking away from the road. This supports the jury=s verdict.

Third, Valdez argues that the facts that Valenzuela was facing the wrong direction as he collected trash from the dumpster and was aware of Ablind spots@ that required additional caution mandate some finding of failure to use due care. We cannot agree. If the jury believed Ramsey=s testimony that Valdez was not watching the road as she drove, and further believed that the accident was caused by Valdez=s car drifting into the path of the dump truck as it pulled out, then the response to Question 1 is supported by the evidence. We cannot find within the record that the jury=s finding is against the great weight and preponderance of the evidence. The sole issue on appeal is overruled.

Conclusion

For the foregoing reasons the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

September 18, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.