Carmen Garza, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza v. Bernardo Perez and The Texas Mexican Railway Company--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION

No. 04-04-00224-CV

Carmen GARZA, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza,

Appellants

v.

Bernardo PEREZ and the Texas Mexican Railway Company,

Appellees

From the 229th Judicial District Court, Duval County

Trial Court No. DC-01-35

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 27, 2005

AFFIRMED

Carmen Garza, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza, appeal the judgment rendered in favor of the Defendants Bernardo Perez and the Texas Mexican Railway Company. Appellants raise five issues for our review. We affirm the judgment of the trial court.

BACKGROUND

Guadalupe R. Garza, Jr., died due to injuries he sustained when his truck collided with a train at an unmarked railroad crossing. On the day of the accident, Garza was hired by Tony Canales to install a septic system on Canales s ranch in Duval County, Texas. After leaving the septic system work site at approximately 10:30 a.m. on April 5, 2000, Garza was driving his pickup truck along a ranch road when he arrived at the railroad crossing. A railroad locomotive owned and operated by the Texas Mexican Railway Company collided with Garza s truck. Garza died shortly after the collision.

As a result, Plaintiffs Carmen Garza, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza, sued Defendants Tony Canales, Bernardo Perez, and the Texas Mexican Railway Company for negligence, premises liability, wrongful death and survival for unsafe conditions at a crossing of railroad tracks and a private road. The Plaintiffs contend that Perez and the Texas Mexican Railway Company were negligent for the following reasons: (1) failing to construct, maintain, repair and replace, as needed, railroad control devices at the crossing; (2) failing to sound a whistle or horn in such proximity to the crossing as to give warning of the train s approach; (3) approaching and transiting the crossing at an unreasonably high rate of speed; (4) failing to maintain a proper lookout for crossing traffic; and (5) failing to maintain its right of way so as to allow a vehicle crossing the tracks an unrestricted view of oncoming trains. In addition, the Plaintiffs contend that Canales was negligent for the following reasons: (1) maintaining an unsafe condition in connection with the railroad; (2) failing to maintain a clear view of the railroad from his property; (3) failing to close the gate that was placed at the crossing; (4) failing to place any warning signs or signals at the crossing; and (5) failing to warn the decedent Garza of the existence and location of the railroad track.

On October 14, 2003, this case proceeded to trial. Prior to the conclusion of the evidence, Plaintiffs and Defendant Tony Canales announced that all matters in controversy between them had been settled and compromised under an agreement calling for the settling parties to bear their own costs of court. On January 23, 2004, the trial court rendered judgment in favor of the Defendants Bernardo Perez and the Texas Mexican Railway Company. The Plaintiffs appeal the judgment of the trial court.

OUT-OF-COURT VIDEO AND AUDIO RECORDINGS

In their first issue, Appellants contend that the trial court erred in admitting four (4) separate video and audio recordings of oncoming trains and sound studies because the recordings were not substantially similar to the parameters and events of the collision. We disagree. When an experiment is conducted out-of-court and in the absence of opposing counsel, there must be a substantial similarity between the conditions depicted on the videotape and the actual event that is the subject of litigation. Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex.1964). However, the conditions need not be identical. Id. at 282. When there is dissimilarity in the conditions, the admission of the experiment is within the trial court s discretion if the differences are minor or are explained to the jury. Id. (holding that the test for exclusion is whether the experiment would tend to confuse rather than aid the jury); compare Sosa By and Through Grant v. Koshy, 961 S.W.2d 420, 430 (Tex. App. Houston [1st Dist.] 1997, writ denied) (finding no abuse of discretion where expert testified that video was substantially similar to conditions existing at time of accident and was cross-examined regarding differences between video and the actual event), and Garza v. Cole, 753 S.W.2d 245, 247 (Tex. App. Houston [14th Dist.] 1988, writ ref d n.r.e.) (finding no abuse of discretion because there was testimony explaining the differences between the video and the actual event), with Lopez v. Foremost Paving, Inc., 796 S.W.2d 473, 481 (Tex. App. San Antonio 1990, writ dism d) (finding trial court abused its discretion where video could have been perceived as a simulated re-enactment of the accident and there was no explanation to the jury of differences between the experiment and actual events).

Here, Appellants challenge the trial court s admission of videotapes sponsored into evidence by Dr. Marshek, an expert witness of the Appellees. // Specifically, Appellants contend that the videos did not portray circumstances substantially similar to those of the collision because: (1) the train and surroundings in the video were different than those that Garza encountered on the day of the accident; and (2) the audio of the train horn in both the video and the sound tests was louder and clearer than what Garza would have been able to hear on the day of the accident. Appellants contend that the videotapes thus misled the jury and created a false impression that viewing and hearing the approaching train was unavoidable by the decedent.

Here, we conclude that although the experimental conditions were not identical to those encountered by Garza, the trial court did not abuse its discretion in determining that they were substantially similar. The record further reflects that the dissimilarities between the video and audio recordings and the occurrence, which were minor, were explained to the jury. Here, Appellees counsel testified that the videotaped experiment was not meant to be an exact duplication of the incident in which Garza was killed. Appellees counsel explained to the jury that the train depicted in the videos was longer than the subject train. Appellees counsel further explained that the surroundings were different in that the video did not depict a huisache bush that was present on the date of the accident With regard to Appellants complaints concerning the audio in the tapes, Appellees counsel explained to the jury that we are going to turn the volume up, adding that in doing so, he was not attempting to simulate the volume of the horn. Thus, having sufficiently recognized and explained any dissimilarities between the experiments and the occurrence, the comparative differences raised by the Appellants affected the weight of the evidence, not its admissibility. See Garza, 753 S.W.2d at 247 (explaining that comparative differences go to the weight of the evidence rather than its admissibility).

Moreover, even assuming that the evidence was incorrectly admitted, we may reverse the judgment of the trial court only if the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Here, we do not find any purported error to be of such dimensions. At trial, Appellants were afforded the opportunity to cross-examine the witness on any dissimilarities in the video experiment. Moreover, the videotapes were not the only evidence bearing on the audibility and visibility of the train. // Thus, having concluded that there was no harmful error, we overrule Appellants first issue on appeal.

ADMISSION OF EVIDENCE

In their second issue, Appellants contend that the trial court abused its discretion by applying differing standards to the parties regarding the admission and exclusion of evidence. Specifically, Appellants complain that the trial court granted unreasonable leniency to the Appellees by permitting witnesses whom Appellees had failed to designate prior to the discovery deadline to testify despite no evidence of good cause; by granting Appellees leave to conduct discovery during trial; and by admitting the documents obtained from the discovery into evidence.

A. Witnesses Allowed to Testify

Appellants argue that the trial court erred in permitting the witnesses to testify over his objection that the Appellees failed to disclose their witnesses within the discovery deadline. SeeTEX. R. CIV. P. 193.6(a). The Appellees do not dispute that they failed formally to disclose their witnesses within the applicable time frame, but instead assert that the Appellants were not unfairly surprised by the identity of the witnesses. See TEX. R. CIV. P. 193.6(a)(2).
A party who fails timely to respond to a discovery request, or to supplement its response, shall not be entitled to offer testimony of a witness having knowledge of a discoverable matter unless the trial court (1) finds good cause sufficient to require admission, or (2) determines the other party will not be unfairly surprised or prejudiced. See TEX. R. CIV. P. 193.6(a). Whether the offering party met this burden is within the broad discretion of the trial court. Alvarado v. Farah Mfg. Co.,830 S.W.2d 911, 914 (Tex.1992).
Here, implicit in the trial court s decision permitting the Appellees witnesses to testify is a determination that there was good cause or no unfair surprise in the Appellees late disclosure of witnesses. See Bellino v. Comm n for Lawyer Discipline, 124 S.W.3d 380, 383-84 (Tex. App. Dallas 2003, pet. denied) (holding that finding of unfair surprise was implicit in court s ruling). While Appellees did not formally disclose its list of witnesses until approximately two months after the deadline for discovery, the Appellants were informed of the identity of the Appellees witnesses more than twenty months prior to their testimony being given. // Further, Appellants deposed every such witness prior to trial and, in fact, had identified several of the witnesses as their own. Against this background, we conclude the record supports a finding that there was no unfair surprise in the admission of the evidence. Accordingly, the trial court did not abuse its discretion in permitting the Appellees witnesses to testify, and we overrule this issue on appeal.

B. Leave to Conduct Discovery

Appellants also argue that the trial court s decision to grant leave to the Appellees to conduct discovery during the trial was both unfair and unduly prejudicial. However, Appellants made no objection at trial and have complained of no error in the trial court s rulings on appeal. Instead, Appellants complain generally regarding what they perceive as the disparate treatment of the parties by the trial court. Having failed to show any error, we overrule this issue on appeal. EXPERT TESTIMONY

In their third issue, Appellants contend that the trial court should not have admitted expert testimony at trial regarding Garza s state of consciousness following the accident because the opinion testimony ran contrary to nationally recognized medical standards. We disagree.

Here, the issue of consciousness was addressed by the parties in determining the pain and suffering, if any, Garza experienced following the collision. On this matter, the trial court admitted the videotaped deposition of Dr. Edward A. Metz, a medical doctor who also was a passenger on the train the day of the accident. In his deposition, Dr. Metz testified that he had examined Garza within moments of the collision. According to Metz, Garza was unresponsive to pain or verbal stimuli. In addition, Garza s eyes were closed and his arms were flaccid. Based upon his personal observation and professional experience, Dr. Metz concluded that Garza was not conscious and never regained consciousness following the initial impact with the train.

On appeal, Appellants argue that Dr. Metz s testimony violated Robinson standards for the admission of expert opinion testimony because Garza s vital signs following the accident did not conform to the classic signs of unconsciousness in medicine. // See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995) // . However, as Metz explained, the signs of consciousness vary with the age of the person, and Garza showed signs of unconsciousness appropriate to his age. Furthermore, because other witnesses testified that Garza was unconscious following the accident and because the jury found no liability, the Appellants were not prejudiced by Metz s testimony regarding the decedent s pain and suffering.

JURY CHARGE

In their fourth and fifth issues, Appellants contend that the trial court erred in submitting its charge to the jury. To reverse on a jury charge error, the Appellants must show harmful error. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-50 (Tex.1980). Error in the jury charge is reversible only if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. See TEX. R. APP. P. 44.1(a); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998).

A. Unwavering Approach Instruction

In their fourth issue, Appellants contend that the trial court erred in failing to submit a jury instruction on an unwavering approach theory of liability. // In order to challenge the trial court s failure to submit an instruction to the jury, however, the complaining party must request in writing and tender to the court a substantially correct wording of the instruction. See TEX. R. CIV. P. 278;Naegeli Transp. v. Gulf Electroquip, Inc., 853 S.W.2d 737, 739 (Tex. App. Houston [14th Dist.] 1993, writ denied). When a party does not submit to the trial court requested instructions in substantially correct form, he waives error. Naegeli Transp., 853 S.W.2d at 739. Here, because Appellants failed to provide the trial court with the instruction they claim should have been submitted, they are precluded from raising such an objection on appeal. Accordingly, we overrule Appellants fourth issue.

B. Comment on the Weight of the Evidence

In their fifth issue, Appellants contend that the trial court committed harmful error by commenting on the evidence and the weight of the evidence. Specifically, Appellants complain about the trial court s instruction to the jury to disregard any implication that the train was operating at an excessive rate of speed when the accident occurred. However, this instruction was neither a comment on the evidence nor on the weight of the evidence. See Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 481 (Tex. App. Houston [1st Dist.] 1994, writ denied) (holding trial court s instruction to jury to disregard inadmissible evidence was proper). Rather, the statement was merely part of the ruling by the trial court with regard to the evidence the trial court properly ruled was inadmissible. // Accordingly, we overrule Appellants final issue on appeal.

CONCLUSION

Having overruled all issues on appeal, we affirm the judgment of the trial court.

Karen Angelini, Justice