RENE ARANDA,FROM A DISTRICT COURT APPELLANT, v. SMITH FURNITURE CO, INC. APPELLEE

 
 
 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01062-CV
 
RENE ARANDA,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
SMITH FURNITURE CO, INC.
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, THOMAS AND OVARD
OPINION BY JUSTICE OVARD
JULY 7, 1989
 
        Appellant, Rene Aranda, appeals the trial court's judgment in favor of appellee, Smith Furniture Co., Inc (SFC). Aranda brought suit against SFC and one of its truck drivers, Andrew Enriquez, for personal injuries sustained in an automobile collision. The jury found that Aranda was ninety percent negligent and that Enriquez was ten percent negligent. The jury further answered "zero" as the amount of money to which Aranda was entitled for his injuries. In two points of error, Aranda complains that the trial court erred in entering a take nothing judgment because the jury's findings are against the great weight and preponderance of the evidence. For the reasons discussed below, we overrule both of Aranda's points of error and affirm the trial court's judgment.
        The record establishes that the accident occurred at the intersection of Harry Hines Boulevard and Roanoke in Dallas. At that intersection, Harry Hines is divided into four lanes, including a left-hand turn lane, that run north and three lanes that run south. Roanoke is a two-lane road that runs east and west, perpendicular to Harry Hines. The speed limit in that area of Harry Hines is forty-five miles per hour.
        Aranda, driving a 1982 Camaro, was traveling northbound on Harry Hines in the center lane when the accident occurred. Enriquez, driving a SFC truck, was traveling west on Roanoke. After stopping at a stop sign, he attempted to turn left in order to proceed south on Harry Hines. As Enriquez crossed the northbound lanes of Harry Hines, Aranda's car struck the back section of the truck on the driver's side, causing extensive damage to Aranda's car and to the back axle of the SFC truck.
        Enriquez and a passenger in the truck were not injured in the accident. Aranda was traveling with two passengers, one of whom was killed in the accident. Aranda sustained a double bone fracture in his leg and an eye injury. The leg injury continues to cause Aranda discomfort and prevents him from standing for long periods of time or engaging in strenuous physical activity. The eye injury causes Aranda to suffer from double vision, dizziness and headaches. At trial, medical testimony showed that the effects of Aranda's injuries are not likely to improve or subside.
        Aranda testified that prior to the accident he had been driving northbound on Harry Hines at a speed of approximately fifty miles per hour. He said that he had been paying attention to a car behind him that was "trying to catch him." Aranda testified that he was looking down at his speedometer and that when he looked up, he saw the truck pulling out in front of him two and one-half car lengths away. He said he immediately slammed on his brakes and they locked, causing him to slide into the truck.
        Enriquez testified that he had been driving westbound on Roanoke towards Harry Hines. At the intersection, Enriquez said that he came to a complete stop behind a stop sign, looked both directions and then proceeded across the northbound lanes of Harry Hines in order to turn left and head south. Enriquez testified that while at the stop sign, he saw some cars at a distance to his left, but that the cars were far enough away that he felt he had sufficient time to cross the intersection. He said that he did not see the Camaro until seconds before impact.
        Aranda called the two police officers who investigated the accident as witnesses. Officer Daugherty, the investigating officer at the scene, testified that the Camaro left 156.31 feet of skid marks. He calculated that, prior to Aranda's applying the brakes, the Camaro was traveling at a speed of sixty-six and two-tenths miles per hour.
        Officer Hodgens, a senior investigating officer, testified that he ran additional accident reconstruction tests. He said his tests showed that Daugherty's estimates were giving Aranda "the benefit of the doubt," indicating that Daugherty's estimates were conservative and that Aranda may have been traveling at a higher speed. In addition, Hodgens testified that according to his calculations, Aranda had a delayed reaction time of approximately 1.6 seconds in applying the brakes once he saw the impending accident. Hodgens indicated this reaction time was longer than the reaction time of an average driver. He said that from the stop sign, at the Roanoke intersection, an average driver would not have been able to perceive the speed of an oncoming vehicle if it was going sixty-six miles per hour. Hodgens further indicated that if Aranda had been traveling at the speed limit or had he acted within the normal reaction time, he would have avoided the collision.
        Aranda complains, in his first point of error, that the jury's apportionment of negligence is against the great weight and preponderance of the evidence. The jury found that Aranda was ninety percent negligent and that Enriquez was ten percent negligent. In reviewing a trial court's judgment, an appellate court can reverse the judgment only if the finding is so against the great weight of the evidence that it is manifestly unjust. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). Generally, if there is any evidence to support the jury's findings, those findings are upheld. Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 377 (Tex. 1984). Therefore, if the evidence is so conflicting that reasonable minds could differ as to the percentage of responsibility assessed under the circumstances of the case, this Court must uphold the trial court's findings. See Ray v. Farmer's State Bank, 576 S.W.2d 607, 609-610 (Tex. 1979). Furthermore, the jury, not the appellate court, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Ohio Medical Prod., Inc. v. Suber, 758 S.W.2d 870, 873 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
        After reviewing all of the evidence, we hold that the jury's findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust. The expert testimony by Aranda's own witnesses was sufficient to support the jury's finding. Officer Hodgens testified that Aranda's excessive speed and delayed reaction time was the cause of the collision. Hodgens said that if Aranda had been traveling at the forty-five miles per hour speed limit, even if he did not apply his brakes, the SFC truck would have had time to clear the intersection and Aranda would have missed the truck by twenty-four feet. Hodgens said that at fifty-five miles per hour had Aranda applied the brakes with the same force as he did prior to the accident with Enriquez, he would have stopped 47.2 feet short of hitting the truck. If Aranda had been traveling sixty miles per hour and applied the brakes with the same force as he did prior to the impact, he would have stopped 19.1 feet before impact.         
        Hodgens further testified that had Aranda not delayed 1.6 seconds in applying the brakes, he could have avoided the accident. He said that, in his opinion, Enriquez did not cause the accident. Hodgens said that from the stop sign, Enriquez would not have been able to effectively perceive the excessive speed of the Camaro. We hold that from this testimony, the jury could have concluded that Aranda was ninety percent negligent in causing the collision. Aranda's first point of error is overruled.
        Aranda's second point of error complains that the jury's award of "zero" damages is against the great weight and preponderance of the evidence. In jury question number two, when asked to assess the amount of damages Aranda suffered, the jury answered "zero." In reviewing the record, it appears that Aranda suffered damages. Because Aranda suffered damages, the jury's "zero" award is in error.
        Whenever an error in the conduct of a trial is encountered, the reviewing court must determine whether or not the error is harmful from a consideration of the record as a whole. El Paso Drive-In Cafes, Inc. v. Wilson, 467 S.W.2d 200, 203 (Tex. Civ. App.--El Paso 1971, no writ). An appellate court may grant a reversal only if it is convinced that a different verdict would have been rendered but for the error. First Employees Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex. 1983); TEX. R. APP. P. 81(b)(1).
        Texas's comparative responsibility law states:
        (a) In an action to recover damages for negligence resulting in personal injury, property damage, or death or an action for products liability grounded in negligence, a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.001(a)(Vernon 1986). We find that under a plain reading of section 33.001, a claimant whose proportion of negligence exceeds that of the other party may not recover damages. Duncan v. Banks, 705 S.W.2d 287, 288 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Aranda's percentage of responsibility for the accident is more than fifty percent; therefore, Aranda is unable to recover damages regardless of the jury's findings. As a result, we conclude that the jury's error did not cause the rendition of an improper judgment, and was, in effect, harmless. Aranda's second point of error is overruled. Accordingly, we affirm the trial court's judgment.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01062.F
 
 
File Date[01-02-89]
File Name[881062]