Opinion issued November 17, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-15-00034-CV
                           ———————————
                        D’JUNA LEBLANC, Appellant
                                       V.
                        KENNETH PALMER, Appellee



                    On Appeal from the 75th District Court
                           Liberty County, Texas
                      Trial Court Case No. CV1205576



                         MEMORANDUM OPINION

      Appellant, D’Juna LeBlanc, sued appellee, Kenneth Palmer, for negligence

arising out of a car accident. At trial, the jury found that neither LeBlanc’s nor

Palmer’s negligence proximately caused LeBlanc’s injuries. As a result, the trial
court rendered a take-nothing judgment against LeBlanc. In two issues on appeal,

LeBlanc argues that (1) the jury erroneously found that neither Palmer nor herself

proximately caused the collision and (2) the trial court erroneously denied her

motion for new trial on the issue of proximate cause.

      We affirm.

                                    Background

      LeBlanc testified that on April 9, 2010, she was driving her SUV from

Dallas to Beaumont on State Highway 105 in Liberty County. 1 LeBlanc stopped at

a four-way stop sign at the intersection of Highway 105 and FM 2518. She

testified that Highway 105 had two lanes at that intersection: one was a left-turn

lane, allowing traffic to turn left from Highway 105 onto FM 2518, and the other

lane continued straight on Highway 105. She testified that when she approached

the intersection, Palmer, who was driving a large logging truck, was stopped in the

left-turn lane, and a white car was stopped in the lane that continued straight on

Highway 105. LeBlanc stated that she stopped behind the white car. She testified

that as Palmer turned left, she heard a big bang, and saw logs from Palmer’s truck

scraping along the side of her SUV. She stated that one of the logs crashed


1
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Ninth District of Texas to this Court pursuant to its docket-equalization
      powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme
      court may order cases transferred from one court of appeals to another at any time
      that, in the opinion of the supreme court, there is good cause for the transfer.”).

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through her rear driver’s side window, lifted the back end of her SUV, and dropped

her SUV back onto the road. LeBlanc testified that she started honking her horn,

and she followed Palmer through the intersection until he stopped so they could

exchange information. LeBlanc did not visit a hospital on the day of the collision,

but she did go to the hospital when she returned to Dallas, and she ultimately had

surgery on her back.

      LeBlanc called Palmer as a witness, and he testified on direct examination

that he had stopped in the left-turn lane on Highway 105 to turn onto FM 2518. He

did not see LeBlanc’s vehicle prior to starting his turn onto FM 2518.               He

acknowledged that when he turned left, logs from his truck “came into” LeBlanc’s

lane and hit her vehicle. Palmer stated that since this incident occurred, he “pull[s]

farther out in the intersection before [he] start[s] turning.”         He agreed with

LeBlanc’s counsel that since the collision, he has “become more cautious and [he]

look[s] more.”

      On cross-examination by his own counsel, Palmer testified that he has made

a left-turn at that particular intersection approximately fifty or sixty times “at least”

and the occasion at issue in this case is the only instance in which a similar

incident has occurred. He stated that on the day of the incident there was no traffic

in front of him as he approached the intersection with FM 2518. As he pulled to a

stop in the left-turn lane, a Wal-Mart truck pulled up next to him in the lane that



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continued straight on Highway 105. Palmer testified that he waited for the Wal-

Mart truck to pull away from the stop sign before he started his left turn. Palmer

stated that he was traveling at a slow speed in first gear as he made his turn. After

he straightened out his truck on FM 2518, he heard honking behind him and pulled

over, where he then spoke with LeBlanc. Palmer testified that LeBlanc told him

that she did not “feel anything” when a log from his truck made contact with her

vehicle. He also testified that he had the following exchange with LeBlanc:

      [Palmer’s counsel]:       [D]id [LeBlanc] make any comments to you
                                about seeing you and seeing you making
                                your turn?
      [Palmer]:                 Yes. She said—I asked her where she was
                                at. She said, “I was behind the truck.”
                                I said, “Did you see me making my turn?”
                                She said, “Yes.”
                                I said, “Why didn’t you just wait a second?”
                                She said, “I thought I moved over far
                                enough.” She said, “I guess I didn’t.”

      Question Number One in the jury charge defined “negligence,” “ordinary

care,” and “proximate cause” and asked the jury, “Did the negligence, if any, of the

persons named below proximately cause the occurrence in question?” The jury

answered “no” for both LeBlanc and Palmer and thus did not answer any further

questions in the charge.    The trial court subsequently entered a take-nothing

judgment against LeBlanc.



                                         4
         LeBlanc then moved for a new trial, arguing that the evidence was factually

insufficient to support the jury’s finding that neither party was responsible for the

collision.     Specifically, LeBlanc argued that “[t]he jury found against the

overwhelming weight of the evidence that [she] failed to prove that Mr. Palmer

was negligent and his negligence was the proximate cause of this accident.” The

trial court denied LeBlanc’s motion for new trial, and this appeal followed.

                             Sufficiency of the Evidence

         In her first issue, LeBlanc contends that the jury’s finding that neither she

nor Palmer was the proximate cause of the collision at issue was against the great

weight and preponderance of the evidence. In her second issue, she argues that the

trial court erroneously denied her motion for new trial on the question of proximate

cause.

         A.    Standard of Review

         In a factual sufficiency review, we consider and weigh all of the evidence.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Arias v.

Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied). When the appellant challenges an adverse finding on an issue on which

she had the burden of proof at trial, she must demonstrate on appeal 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) (per curiam); Reliant



                                           5
Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782

(Tex. App.—Houston [1st Dist.] 2011, no pet.). The jury is the sole judge of the

witnesses’ credibility, and it may choose to believe one witness over another. See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We

may not substitute our judgment for that of the jury. Id. “Because it is the jury’s

province to resolve conflicting evidence, we must assume that jurors resolved all

conflicts in accordance with their verdict.” Figueroa v. Davis, 318 S.W.3d 53, 60

(Tex. App.—Houston [1st Dist.] 2010, no pet.).

      B.    Evidence of Negligence

      “Negligence actions in Texas require ‘a legal duty owed by one person to

another, a breach of that duty, and damages proximately caused by the breach.’”

Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting

D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). Proximate cause is

composed of both cause in fact and foreseeability. Love, 92 S.W.3d at 454. Cause

in fact requires proof “that an act or omission was a substantial factor in bringing

about injury which would not otherwise have occurred.” Prudential Ins. Co. of

Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995). Foreseeability

exists when “the actor as a person of ordinary intelligence should have anticipated

the dangers his negligent act creates for others.” Love, 92 S.W.3d at 454 (quoting

El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987)).



                                         6
      The mere occurrence of a collision does not establish negligence as a matter

of law. Gomez v. Adame, 940 S.W.2d 249, 252 (Tex. App.—San Antonio 1997, no

writ) (citing Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—

Houston [14th Dist.] 1989, writ denied)); see also Till v. Thomas, 10 S.W.3d 730,

733 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“The occurrence of an

accident or a collision is not of itself evidence of negligence.”). Instead, the

plaintiff bears the burden to prove specific acts of negligence on the part of the

defendant-driver and that those acts of negligence proximately caused the

occurrence. Gomez, 940 S.W.2d at 252. “All persons have the duty to maintain a

proper lookout and to observe in a careful manner the traffic and general situation

at and in the vicinity of an intersection.” Id. at 251 (citing Lynch v. Ricketts, 314

S.W.2d 273, 275 (Tex. 1958)). Whether the plaintiff has proved negligence and

proximate cause by a preponderance of the evidence is within the province of the

jury to determine. Id. at 252.

      Here, LeBlanc and Palmer presented conflicting accounts of how the

collision in question occurred. LeBlanc testified that as she approached the stop

sign at the intersection of Highway 105 and FM 2518, the logging truck driven by

Palmer was stopped in the left-turn lane preparing to turn onto FM 2518, and a

white car was stopped in the lane that continued straight on Highway 105.

LeBlanc pulled to a stop behind the white car. She waited at the stop sign, and as



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Palmer turned left, she heard a loud bang, and logs from Palmer’s truck scraped

along the side of her SUV and crashed through her rear driver’s side window,

lifting her SUV up off the ground.

      Palmer did not dispute that the collision occurred or that logs from his truck

made contact with LeBlanc’s SUV. He did, however, testify that there was no

traffic waiting at the intersection when he pulled up to the stop sign in the left-turn

lane of Highway 105. As he came to a stop, a Wal-Mart truck pulled up to the stop

sign in the lane that continued straight on Highway 105. Palmer waited for the

Wal-Mart truck to pull away from the intersection before he started his turn onto

FM 2518. He testified that he was traveling slowly and in first gear through the

turn. After he completed the turn, he heard honking and discovered that one of the

logs from his truck had made contact with LeBlanc’s vehicle during the turn.

Palmer testified that he and LeBlanc exchanged information and had the following

conversation:

      [Palmer’s counsel]:        [D]id [LeBlanc] make any comments to you
                                 about seeing you and seeing you making
                                 your turn?
      [Palmer]:                  Yes. She said—I asked her where she was
                                 at. She said, “I was behind the truck.”
                                 I said, “Did you see me making my turn?”
                                 She said, “Yes.”
                                 I said, “Why didn’t you just wait a second?”



                                          8
                                She said, “I thought I moved over far
                                enough.” She said, “I guess I didn’t.”

The charge asked the jury, “Did the negligence, if any, of the persons named below

proximately cause the occurrence in question?” The jury answered “no” for both

Palmer and LeBlanc.

      On appeal, Palmer acknowledges that the record contains sufficient evidence

such that the jury could have found him negligent. However, the record also

contains evidence—namely, Palmer’s testimony that LeBlanc told him that she

saw him turning onto FM 2518, that she “thought [that she had] moved over far

enough” to clear the logs on his truck, and that she did not wait for him to

complete his turn before proceeding through the intersection, leading to the

collision—that Palmer was not negligent in causing the occurrence. See Risinger

v. Shuemaker, 160 S.W.3d 84, 90–91 (Tex. App.—Tyler 2004, pet. denied)

(“Although there was sufficient evidence to support a jury finding that Shuemaker

was negligent on the day in question by failing to keep a proper lookout or driving

inattentively, the evidence also supports the finding that he was not negligent.”);

see also Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex. App.—Houston [14th Dist.]

2000, pet. denied) (“Because the appellate court is not the fact finder, it may not

substitute its own judgment for that of the trier of fact, even if a different answer

could be reached on the evidence.”).




                                         9
      LeBlanc and Palmer were the only witnesses who testified concerning the

circumstances of the collision itself. The jury, as the fact finder, was the sole judge

of the credibility of the witnesses, and it had the power to believe one witness over

another. See Golden Eagle Archery, 116 S.W.3d at 761. It is within the province

of the jury to resolve conflicts in the evidence, and we therefore assume that the

jurors resolved all such conflicts in favor of their verdict. Figueroa, 318 S.W.3d at

60.

      LeBlanc cites this Court’s 1959 decision in Carrico v. Busby for the

proposition that the jury in this case did not have the right to disbelieve Palmer’s

testimony admitting to the accident and conclude that no party caused the accident.

See 325 S.W.2d 413, 418 (Tex. Civ. App.—Houston [1st Dist.] 1959, writ ref’d

n.r.e.). In Carrico, the plaintiff was a passenger sitting in the rear of a vehicle that

was rear-ended by the defendant. Id. at 414. The jury found the defendant not

negligent and that the collision was “the result of an unavoidable accident.” Id.

This Court concluded that the jury’s findings were so against the overwhelming

weight and preponderance of the evidence as to be manifestly unjust, reasoning:

      Appellee drove his car into the rear of the Beaulieu car [in which
      Carrico was a passenger] in broad daylight. There is nothing to
      account for the collision other than the negligence of appellee in the
      particulars submitted in said [i]ssues. Appellee admitted that the
      accident would not have happened had he been watching a little
      closer, and the undisputed evidence shows he followed the Beaulieu
      car too closely and failed to make timely application of his brakes.



                                          10
Id. at 415 (emphasis added). LeBlanc argues that, as in Carrico, in this case,

“there is nothing to account for the collision other than the negligence of Kenneth

Palmer,” who “admitted he did not maintain a proper lookout when he admitted he

did not see [LeBlanc] located in [the] lane directly next to him.”

      Here, however, unlike in Carrico, Palmer presented a conflicting account of

the collision from LeBlanc, including testimony that LeBlanc told him after the

collision that she saw his truck but decided to proceed through the intersection

instead of waiting for him to complete his turn because she thought she had enough

room to clear the intersection without making contact with his truck. Numerous

cases since Carrico have held that when the jury is presented with conflicting

testimony concerning the cause of a collision and finds that neither party’s

negligence proximately caused the collision, the appellate court may not substitute

its judgment for the jury’s and hold that the finding of no negligence is against the

great weight and preponderance of the evidence. See, e.g., Risinger, 160 S.W.3d at

90–91; Gomez, 940 S.W.2d at 252; Smith, 774 S.W.2d at 414; see also Till, 10

S.W.3d at 733 (“While it is true [the defendant] admitted she misjudged the

distance due to the overhang on the door, this admission, in and of itself, does not

constitute negligence.”).

      When we consider all of the testimony, as we must when conducting a

factual sufficiency review, we conclude that the jury’s verdict, in which it found



                                         11
that neither Palmer nor LeBlanc committed negligence that proximately caused the

occurrence in question, was not so against the great weight and preponderance of

the evidence such that it was manifestly unjust. See Francis, 46 S.W.3d at 242. It

was well within the jury’s province to credit Palmer’s testimony and find that

neither party acted unreasonably or failed to use ordinary care. See Risinger, 160

S.W.3d at 91 (“The jury chose to believe Shuemaker’s version of the events that

occurred prior to the collision and determined that he did not fail to use ordinary

care under the same or similar circumstances.”); DeLeon v. Pickens, 933 S.W.2d

286, 290 (Tex. App.—Corpus Christi 1996, writ denied) (“In the face of two

different interpretations of the accident, we will not construe the jury’s conclusion

to be manifestly unjust.”); Smith, 774 S.W.2d at 414 (upholding jury verdict

finding no negligence on part of either plaintiff or defendant drivers when parties

presented conflicting testimony concerning how fast defendant was driving,

whether he made safe lane change, whether plaintiff’s brake lights were on, and

how much warning plaintiff gave that she intended to turn).

      We therefore hold that factually sufficient evidence supported the jury’s

determination that Palmer did not proximately cause the collision in question, and,

therefore, the trial court did not err in denying LeBlanc’s motion for new trial on

the issue of proximate cause.

      We overrule LeBlanc’s first and second issues.



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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.




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