Ernestine Garcia v. Norris LeBlanc--Appeal from 269th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

NO. 10-92-167-CV

ERNESTINE GARCIA,

Appellant

v.

NORRIS LeBLANC,

Appellee

From the 269th District Court

Harris County, Texas

Trial Court # 87-49832

O P I N I O N

Garcia filed suit against LeBlanc seeking damages for injuries she received in an automobile accident in Houston on October 7, 1987. The jury found that Garcia's own negligence was a proximate cause of the accident. They failed to find LeBlanc negligent. Garcia now appeals the judgment rendered on the in favor of LeBlanc. We will affirm the judgment.

At the trial, it was essentially Garcia's word against LeBlanc's that LeBlanc had run the red light that resulted in their intersectional collision. Although parts of the deposition testimony of Carolyn Nelson, a witness to the collision, were read into evidence, her account of what had occurred was somewhat confused. She testified that LeBlanc ran the light; however, the rest of her testimony indicated that LeBlanc could not have reached the intersection while the light in his direction was still red. In point one, Garcia asserts the court erred in denying her motion for new trial because "there was ample evidence to contradict the jury's answer to question one." Question one inquired whether the negligence of the parties proximately caused the accident. The jury answered affirmatively as to Garcia and refused to find LeBlanc negligent.

If Garcia is attacking the legal sufficiency of the jury's failure to find LeBlanc negligent, which Garcia had the burden to prove, she must show that the evidence established Leblanc's negligence as a matter of law. See Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex. App. Houston [1st Dist.] 1987, no writ). Even though there may be no evidence to support the jury's failure to find LeBlanc negligent, the finding will be upheld. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). We must first examine the record for evidence supporting the failure to find, ignoring all contrary evidence. Id. If no evidence supports the failure to find, we must then examine the entire record to determine whether LeBlanc's negligence was established as a matter of law. See id. at 690.

In reviewing the factual sufficiency of the jury's failure to find LeBlanc negligent, we must examine the entire record to determine whether the failure to find is so clearly against the great weight and preponderance of the evidence as to be manifestly unjust. See Johnson Roofing v. Staas Plumbing, 823 S.W.2d 783, 789 (Tex. App. Waco 1992, no writ). We are not to substitute our judgment for that of the jury. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Corpus Christi Teacher's C. U. v. Hernandez, 814 S.W.2d 195, 197 (Tex. App. San Antonio 1991, no writ).

LeBlanc testified that he was traveling north on Scott Street as he approached the Loop 610 interchange. He stopped at the red light at the intersection of Scott Street and Holmes Road. He stated that it is approximately 300 feet from the intersection of Scott Street and Holmes Road to the Loop 610 interchange. After the light at the intersection of Holmes and Scott, the road curves after it crosses a railroad track. LeBlanc also stopped for a red light at the intersection of Loop 610 South and Scott Street. He estimated the distance between the southern intersection of Scott Street and Loop 610 South and the northern intersection of Scott and the freeway to be approximately 300 feet. LeBlanc was proceeding north on Scott and had traveled approximately half the length of that portion of the roadway which passed under the freeway when the light at the northern intersection of Scott and the freeway turned green. He estimated that once the light at the southern intersection of the exchange turned green, the light at the northern intersection turned green approximately three or four seconds later.

As LeBlanc proceeded under the freeway toward the northern intersection, he noticed a blue car exiting the freeway in the same direction as Garcia's vehicle was traveling. The blue car, which had just exited the freeway, stopped in the left-hand lane at the light at the northern intersection in the direction of Garcia's travel. As LeBlanc proceeded into the intersection, he saw a black car (Garcia's) moving to the right hand lane of the feeder road around the blue car which had stopped for the red light. Upon seeing the black car, LeBlanc immediately applied his brakes, but the black car came into the intersection and struck the front of LeBlanc's car. LeBlanc estimated that Garcia was traveling approximately forty-five miles per hour immediately prior to the collision. LeBlanc testified that his own speed never exceeded thirty-five miles per hour. LeBlanc described the damage to Garcia's car as a "straight back scrape-like indentation with a scrape" from "about midways of the door, maybe the end of the door all the way back to the back of the car." The photographs of the two vehicles admitted into evidence reflect a scraped indentation stretching about three-quarters of the length of Garcia's car on the driver's side. The front of LeBlanc's car sustained relatively minor damage.

LeBlanc's testimony was corroborated in part by the deposition testimony of a witness, Carolyn Ann Nelson. She testified that LeBlanc's vehicle had remained even with hers through the southern intersection of the exchange, thus preventing her from moving into the right-hand lane to make a right turn, and that she was traveling at approximately twenty miles per hour during this time. She testified that, while crossing through the southern-most intersection, she had nearly slowed to a stop, and that as they approached the northernmost intersection, LeBlanc was only about ten feet ahead of her. The trial court took judicial notice of the fact that a car moving at sixty miles per hour would travel eighty-eight feet per second; similarly, a car traveling thirty miles per hour would be traveling forty-four feet per second. The defense argued and the jury apparently believed, in spite of witness Nelson's testimony that LeBlanc had run the light that LeBlanc could not have crossed through the northern intersection while the light was red, if he had traveled from the southern intersection to the northern intersection where the accident occurred at the speeds he and Nelson had testified to. Although the police accident report, which indicated that LeBlanc had run the light, was admitted into evidence, the report was undoubtedly based upon the statements of witness Nelson, whom the jury clearly did not believe.

Furthermore, LeBlanc testified that, immediately following the collision, Garcia stated to him, and made the same statement to others at the scene, that she had been looking over her shoulder to see if a police officer was following her as she exited the freeway.

Garcia testified that she never saw LeBlanc's vehicle until "right at impact." Garcia stated that she was traveling west on 610 West, South Loop East, returning to work after lunch. She exited the freeway at Scott Street, immediately proceeding into the intersection where the accident happened. She did not recall seeing a vehicle in the left-hand lane stopped at the light. She stated that, following the impact, her car skidded approximately thirty to forty feet across a median. She had traveled directly from the exit ramp of the freeway into the intersection where the accident occurred. The jury was entitled to disbelieve those portions of her testimony that were contrary to LeBlanc's. Thus, the evidence was legally and factually sufficient to support the jury's response to question one. We overrule point one.

Garcia claims in her remaining points, two, three, and four, that the trial court abused its discretion in refusing to submit various requested questions, instructions and definitions. The record shows that, although Garcia was given a reasonable opportunity prior to the reading of the charge to present her objections and proposed questions and instructions, the charge had been read to the jury and the jury had begun its deliberations when Garcia submitted her requests and objections to the court for its consideration. However, Garcia has waived these complaints by failing to properly request them or to object to the charge before it was read to the jury. See Tex. R. Civ. P. 272; Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989); Sudderth v. Howard, 560 S.W.2d 511, 516 (Tex. App. Amarillo 1977, writ ref'd n.r.e.). We overrule points two, three, and four.

We affirm the judgment.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 18, 1992

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