Affirmed and Opinion Filed March 14, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01122-CV

                                 CIA BABIY, Appellant
                                         V.
                            RAMZI MORGAN KELLEY, Appellee

                       On Appeal from the 416th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 416-04069-2015

                              MEMORANDUM OPINION
                          Before Justices Schenck, Reichek, and Nowell
                                   Opinion by Justice Nowell

       In this negligence case, the jury returned a verdict that neither the plaintiff nor the defendant

were negligent. The trial court rendered judgment that plaintiff take nothing on her claim. In two

issues on appeal, Cia Babiy contends the jury’s verdict was contrary to the conclusive evidence or

against the great weight and preponderance of the evidence and that the trial court erred by refusing

her request for an instruction on negligence per se. We affirm.

                                           BACKGROUND

       Around 8:30 p.m. on December 19, 2013, Babiy and her husband, Mark Van Tassell, were

walking South on South Kentucky Street in McKinney. They stopped at the corner of West

Louisiana Street and South Kentucky Street and waited for the light to change. Both streets are

one-way streets, West Louisiana heading East and South Kentucky heading south. Ramzi Morgan
Kelley was driving South in the left hand lane on South Kentucky Street. She stopped at a red

light, planning to turn left into the left-hand lane of West Louisiana Street. The weather that night

was clear and the intersection was lighted.

       At the same time that Kelley’s traffic signal turned green, the pedestrian control signal in

front of Babiy indicated “WALK.” Babiy looked both ways before crossing, but did not see

Kelley’s vehicle before the accident. Babiy took a couple of strides into the crosswalk when she

was hit by Kelley’s vehicle.

       Kelley testified that when the light turned green, she looked for pedestrians, paused a

couple of seconds, then lifted her foot off the brake and, without pressing the accelerator, began

making a left turn. Moments later, Kelley’s vehicle collided with Babiy, who was forced to the

ground at the side of the vehicle. Kelley testified she looked in front, to the right, and to the left

before she turned and did not see Babiy or Van Tassell until she hit them.

       Babiy testified she injured her neck, shoulder, left leg, right knee, and left hand. The police

report recorded that Babiy complained of bodily pain and sustained minor injuries on one of her

arms. She was treated at the scene and released.

       Van Tassell estimated Kelley was travelling about five miles an hour at the time of impact.

He testified they had taken several steps into the street when he looked to his right and saw Kelley’s

vehicle approaching just as it reached him. The vehicle struck Babiy, sending her to the ground,

while Van Tassell was lifted onto the hood of Kelley’s vehicle. Van Tassell was not injured in the

accident.

       Kelley testified there was a bush blocking her view and that she believed Babiy and Van

Tassell were standing behind the bush and stepped out just as Kelley was making her turn into the

lane. Kelley also testified there was a large sign or monument on the corner where Babiy and Van

Tassell were waiting to cross the street. Several photographs and diagrams of the intersection were

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admitted in evidence. One page of the Texas Driver Handbook section titled “Yield the Right-of-

Way to Pedestrians” was admitted in evidence. This page includes the statement: “Drivers must

give the right-of-way to pedestrians: . . . If the pedestrian has a WALK signal.”

        At the charge conference, Babiy requested the following instruction be included with the

general negligence question:

        The law requires drivers to give the right-of-way to pedestrians if the pedestrian
        has a walk signal. Failure to comply with this law is negligence in itself.

The trial court refused the instruction and overruled Babiy’s objection to the failure to include the

instruction. The jury failed to find that the negligence, if any, of either Kelley or Babiy proximately

caused the occurrence. The trial court denied Babiy’s motions to disregard the jury’s findings and

for judgment notwithstanding the verdict, and rendered judgment that Babiy take nothing from

Kelley. The trial court also overruled Babiy’s motion for new trial.

                                             DISCUSSION

    A. Sufficiency of the Evidence

        In her first issue, Babiy contends the evidence is legally and factually insufficient to support

the jury’s verdict.

        When reviewing the legal sufficiency of the evidence, we determine “whether the evidence

at trial would enable reasonable and fair-minded people to reach the verdict under review.” City

of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We review the evidence in the light most

favorable to the verdict, crediting favorable evidence if a reasonable juror could, and disregarding

contrary evidence unless reasonable jurors could not. Id. Evidence is legally insufficient when

(a) evidence of a vital fact is completely absent; (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes

conclusively the opposite of the vital fact. Id. at 810.

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       When reviewing the factual sufficiency of the evidence, we consider all the evidence and

will set aside the verdict only if the evidence supporting the jury finding is so weak or so against

the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Crosstex

N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016). This Court, however, is not

a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment

for that of the trier of fact, even if a different answer could be reached upon review of the evidence.

See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). “[T]he

jury is the sole judge of the credibility of witnesses and the weight to be given their testimony.”

Golden Eagle Archery, Inc., v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A fact finder “may

disregard even uncontradicted and unimpeached testimony from disinterested witnesses,” so long

as the decision to disregard is reasonable. City of Keller, 168 S.W.3d at 820.

       When a party attacks the legal sufficiency of an adverse finding on an issue on which she

has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter

of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001). Evidence is conclusive only if reasonable people could not differ in their conclusions. See

City of Keller, 168 S.W.3d at 816. When a party attacks the factual sufficiency of an adverse

finding on an issue on which she had the burden of proof, she must demonstrate on appeal that the

adverse finding was against the great weight and preponderance of the evidence. Francis, 46

S.W.3d at 242.

       1.        Negligence per se

       Babiy argues the evidence conclusively establishes that Kelley was negligent per se. She

contends Kelley violated section 552.002(b) of the Transportation Code:

       (b) A pedestrian facing a “Walk” signal may proceed across a roadway in the
       direction of the signal, and the operator of a vehicle shall yield the right-of-way to
       the pedestrian.


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TEX. TRANSP. CODE ANN. § 552.002(b).

       Negligence per se is a common law doctrine in which a duty is imposed based on a standard

of conduct created by a penal statute rather than on the reasonably prudent person test used in pure

negligence claims. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). Not every penal statute

creates an appropriate standard of care for civil liability purposes. Id. A court is therefore not

required to adopt the penal statute’s standard as the standard for civil liability. Id.; Rudes v.

Gottschalk, 324 S.W.2d 201, 204 (Tex. 1959) (“As the power of adopting or rejecting standards

rests with the civil courts, we may accept or reject the criminal statute or use such part thereof as

may be deemed appropriate for our purposes.”).

       At times, the supreme court has used language suggesting that any statutory violation is

automatically negligence per se. See, e.g., S. Pac. Co. v. Castro, 493 S.W.2d 491, 497 (Tex. 1973)

(stating that to prove negligence per se, one must prove the unexcused violation of a penal

standard). The correct rule, however, is: “The unexcused violation of a legislative enactment or

an administrative regulation which is adopted by the court as defining the standard of conduct of

the reasonable man, is negligence in itself.” Perry v. S.N., 973 S.W.2d 301, 304 n.4 (Tex. 1998)

(citations omitted).

       A statute that creates an absolute duty may be appropriate for negligence per se because

the statutory duty supplants the common law duty of ordinary care. See Supreme Beef Packers,

Inc. v. Maddox, 67 S.W.3d 453, 455 (Tex. App.—Texarkana 2002, pet. denied). But a statute that

creates a conditional duty or merely restates the common law ordinary care standard is not

appropriate for negligence per se. See id. at 456 (statute incorporating ordinary care standard does

not establish specific standard of conduct different from common law standard); Hemphill v.

Meyers, 469 S.W.2d 327, 328 (Tex. Civ. App.—Austin 1971, orig. proceeding). If a statute

imposes a duty that is conditional, rather than absolute, violation of the statute does not constitute

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negligence per se. Missouri-K.-T. R.R. v. McFerrin, 291 S.W.2d 931, 935–36 (Tex. 1956).

Instead, the “reasonable person” standard of common law negligence is read into the statute.

Cudworth v. South Tex. Paisano Const. Co., 705 S.W.2d 315, 317 (Tex. App.—San Antonio 1986,

writ ref’d n.r.e.); Booker v. Baker, 306 S.W.2d 767, 773–74 (Tex. Civ. App.—Dallas 1957, writ

ref’d n.r.e.).

        Babiy argues that section 552.002(b) establishes an absolute duty on a driver to yield the

right-of-way to a pedestrian facing a “Walk” signal and leaves the driver no discretion or room for

the exercise of judgment. We disagree that the statute creates a mandatory duty appropriate for

civil liability. Section 552.002 requires a driver to “yield the right of way” to a pedestrian crossing

a roadway while facing a “Walk” signal. TEX. TRANSP. CODE ANN. § 552.002(b).                      The

transportation code expressly defines “right of way” as:

        “Right-of-way” means the right of one vehicle or pedestrian to proceed in a lawful
        manner in preference to another vehicle or pedestrian that is approaching from a
        direction, at a speed, and within a proximity that could cause a collision unless one
        grants precedence to the other.

TEX. TRANSP. CODE ANN. § 541.401(8). The duty to yield the right-of-way is conditioned on a

determination that “another vehicle or pedestrian” is approaching “from a direction, at a speed,

and within a proximity that could cause a collision unless one grants precedence to the other.” Id.

Thus, the statutory duty requires persons to evaluate the direction, speed, and proximity of another

vehicle or pedestrian before they may proceed in a lawful manner. See McFerrin, 291 S.W.2d at

936 (duty to stop at railroad crossing when approaching train is plainly visible and in hazardous

proximity to crossing “is not absolute but is conditioned on the existence at that time of a certain

state of facts”).

        Babiy emphasizes that section 552.002 uses the mandatory language “shall yield the right-

of-way.” Section 552.002 is one of several sections of the Rules of the Road using the phrase

“shall yield the right-of-way.” See, e.g., TEX. TRANSP. CODE ANN. §§ 544.007, 545.061, .152,
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.153, .154, .155, .251, 552.002, .003, .005, .006. However, “a statutory right-of-way rule is not

absolute but relative, and is subject to the qualification that a person entitled to claim such right

will exercise it with proper regard for the safety of himself and others.” McWilliams v. Muse, 300

S.W.2d 643, 645 (Tex. 1957) (citing Lewis v. Martin, 120 S.W.2d 910, 913 (Tex. Civ. App.—

Amarillo 1938, writ ref’d)).     “The person having the right-of-way cannot exercise it with

impunity.” Stanley v. S. Pac. Co., 466 S.W.2d 548, 553 (Tex. 1971). This Court has concluded

that such statutes

       come within the class of statutes in which the common-law standard of the
       reasonably prudent [person] must be used in determining as a matter of fact, not as
       a matter of law, whether the conduct of a motorist is negligent. The duties imposed
       by these particular statutes are not absolute, they are conditional. They do not
       dispense with the necessity of a finding of fact as to whether the conduct of a
       motorist was negligent under the circumstances.

Booker v. Baker, 306 S.W.2d 767, 773–74 (Tex. Civ. App.—Dallas 1957, writ ref’d n.r.e.).

       In County of Dallas v. Poston, this Court concluded that section 545.155, among other

statutes, did not create an appropriate standard for civil liability. Cty. of Dallas v. Poston, 104

S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Section 545.155 uses the same “shall yield

the right-of-way” language as section 552.002. Section 545.155 provides:

       An operator about to enter or cross a highway from an alley, building, or private
       road or driveway shall yield the right-of-way to a vehicle approaching on the
       highway to be entered.

TEX. TRANSP. CODE ANN. § 545.155. The Court held that the duty imposed by this section is not

absolute; rather, “the appropriate inquiry is whether a reasonably prudent driver under the same or

similar circumstances would have yielded the right-of-way.” Cty. of Dallas, 104 S.W.3d at 722;

see also Hemphill v. Meyers, 469 S.W.2d 327, 328 (Tex. App.—Austin 1971, orig. proceeding).

       Courts have also held that a driver’s failure to yield the right-of-way does not give rise to

negligence as a matter of law. See Middleton v. Palmer, 601 S.W.2d 759, 765 (Tex. Civ. App.—

Dallas 1980, writ ref’d n.r.e.); Canales v. Womack, No. 01-07-00222-CV, 2008 WL 2388132, at

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*2 (Tex. App.—Houston [1st Dist.] June 12, 2008, no pet.) (mem. op.). Instead, when evidence

shows that the driver exercised some care, “it becomes an issue of fact as to whether the driver’s

conduct was negligent.” Cty. of Dallas, 104 S.W.3d at 723.

       Babiy cites an unpublished opinion from this Court which held the statutory duty to stop

when facing a steady red traffic signal established negligence per se. Carrington v. Denison

Poultry & Egg Co., 05-91-01181-CV, 1992 WL 193487, at *2 (Tex. App.—Dallas Aug. 11, 1992,

writ denied) (per curiam, not designated for publication); see TEX. R. APP. P. 47.7(b) (opinions

designated “do not publish” prior to January 1, 2003 have no precedential value). Carrington is

not precedent, but, even so, it addressed a different statute and found the mandatory duty to stop

at a red traffic signal supplanted the common law duty of ordinary care. Id. We recognized that

the duty to stop at a red signal is not conditioned on the occurrence of certain facts to be determined

by the common law negligence standard. Id. at *3. However, the statute at issue here requires an

operator to yield the right-of-way when circumstances indicate that the failure to do so could result

in a collision. See TEX. TRANSP. CODE ANN. §§ 552.002(b); 541.401(8). The appropriate inquiry

is whether a reasonably prudent driver under the same or similar circumstances would have yielded

the right-of-way. Cty. of Dallas, 104 S.W.3d at 722.

       Babiy argues that section 552.002(b) is meaningless if it does not establish negligence per

se. We cannot agree. The statute imposes a criminal law duty the violation of which subjects the

operator to criminal penalties. See TEX. TRANSP. CODE ANN. § 542.301(a) (a person commits an

offense if the person performs an act prohibited or fails to perform an act required by subtitle C).

The only issue here is whether a court should adopt the statutory standard as a standard for civil

liability. See Smith, 940 S.W.2d at 607. That decision has no impact on the application of the

statute to criminal penalties. See McFerrin, 291 S.W.2d at 939 (stating that applying common law

negligence standards “does not render the statute nugatory or futile,” rather, violation of the statute

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subjects the person to criminal penalties).

       Based on the statutory definition of right-of-way and case law interpreting similar statutes,

we conclude section 552.002(b) does not create an appropriate standard of care for negligence per

se. Accordingly, Babiy filed to conclusively prove that Kelley’s negligence proximately caused

her injury under her negligence per se theory.

       2.      Legal Sufficiency

       Babiy next contends the evidence conclusively establishes Kelley’s negligence under the

common law. To prevail on a negligence cause of action, a plaintiff must prove the defendant

owed a legal duty to the plaintiff, the defendant breached that duty, and the breach proximately

caused the plaintiff’s injuries. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Proximate

cause consists of cause in fact and foreseeability. Sw. Key Program, Inc. v. Gil–Perez, 81 S.W.3d

269, 274 (Tex. 2002); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.

1995). “These elements cannot be established by mere conjecture, guess, or speculation.” W.

Invs., Inc., 162 S.W.3d at 551. The test for cause in fact is whether the negligent act was a

substantial factor in bringing about the injury, without which the harm would not have occurred.

See Sw. Key Program, Inc., 81 S.W.3d at 274. The test for foreseeability is whether a person of

ordinary intelligence should have anticipated the danger created by the negligent act. Id.

       A driver has a general duty to exercise ordinary care and to keep a proper lookout. Ciguero

v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.). “The duty to keep a proper

lookout encompasses the duty to observe, in a careful and intelligent manner, traffic and the

general situation in the vicinity, including speed and proximity of other vehicles as well as rules

of the road and common experience.” Carney v. Roberts Inv. Co., Inc., 837 S.W.2d 206, 210 (Tex.

App.—Tyler 1992, writ denied). “The failure to keep a proper lookout can be a proximate cause

of an accident where the motorist should have seen something in time to have avoided the accident


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by evasive action and but for such failure the collision could have been avoided.” Montes v.

Pendergrass, 61 S.W.3d 505, 510 (Tex. App.—San Antonio 2001, no pet.).

       Babiy contends that if the jury believed that Kelley did not see Babiy before hitting her,

the evidence proves Kelley breached the duty to keep a proper lookout. Alternatively, she asserts,

if the jury believed Kelley saw Babiy, then the evidence proves Kelley failed to yield the right-of-

way. Babiy concludes that under either circumstance, the evidence conclusively establishes that

Kelley was negligent. We disagree. The mere occurrence of a collision does not establish

negligence as a matter of law. Ciguero, 455 S.W.3d at 748; Benavente v. Granger, 312 S.W.3d

745, 749 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Nor is the mere fact that an accident

occurred evidence of a failure to keep a proper lookout. Brister v. Lasiter, 444 S.W.2d 331, 335

(Tex. Civ. App.—El Paso 1969, writ ref’d n.r.e.); see also Cantrell v. Markham & Brown Co. &

Associates, 452 S.W.2d 940, 943–44 (Tex. Civ. App.—Dallas 1970, writ ref’d n.r.e.).

       Here the jury heard evidence that Kelley exercised some degree of care: she stopped at the

red light, when the light changed, she looked for pedestrians, looked both directions, then slowly

proceeded to turn left. The fact the Kelley did not see Babiy even though her vision was not

obstructed does not automatically establish a breach of the duty of proper lookout. See Rodriguez,

ex rel. Rodriguez v. Garcia, No. 08-01-00068-CV, 2001 WL 1515836, at *3 (Tex. App.—El Paso

Nov. 29, 2001, no pet.) (not designated for publication); Gomez v. Adame, 940 S.W.2d 249, 252

(Tex. App.—San Antonio 1997, no writ); Brister, 444 S.W.2d at 335. The question of whether

Kelley’s negligence, if any, proximately caused Babiy’s injury under these circumstances was for

the jury. See Cty. of Dallas, 104 S.W.3d at 723; Middleton, 601 S.W.2d at 765.

       We conclude the evidence is legally sufficient to support the jury’s verdict.

       3.      Factual Sufficiency

       Babiy contends the jury’s finding was against the great weight and preponderance of the


                                               –10–
evidence.

         The jury heard evidence that Kelley looked for pedestrians and both directions before

turning. The accident occurred at night, although it was clear and the intersection was lighted.

There was also evidence that a bush or monument sign on the corner obstructed Kelley’s view.

The jury heard evidence that even though she looked, Kelley did not see Babiy before hitting her.

It also heard evidence that even though Babiy looked both ways before crossing, she did not see

Kelley’s vehicle. Cases have long recognized that the occurrence of an accident or collision is not

of itself evidence of negligence. Rankin v. Nash-Texas Co., 105 S.W.2d 195, 199 (Tex. [Comm’n

Op.] 1937); Gomez, 940 S.W.2d at 252; Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412

(Tex. App.—Houston [14th Dist.] 1989, writ denied).           Here the evidence does not greatly

preponderate in favor of a finding that Kelley was negligent. The jury could reasonably conclude

from all the evidence that under the circumstances of this case the failure of both the driver and

the pedestrian to see the other was not negligence.

         We conclude the evidence is factually sufficient to support the jury’s verdict.

         4.     Summary

         Crediting all favorable evidence that reasonable jurors could believe and disregarding all

contrary evidence except that which they could not ignore, we conclude the evidence is legally

sufficient to support the jury’s verdict. After reviewing all the evidence, we cannot say the jury’s

verdict is so against the great weight and preponderance of the evidence as to be clearly wrong and

unjust. Thus the evidence is factually sufficient to support the verdict. We overrule Babiy’s first

issue.

    B. Jury Instruction

         In her second issue, Babiy argues the trial court abused its discretion by refusing her

requested instruction on negligence per se.


                                                –11–
       We review the trial court’s decision to submit or refuse a requested jury instruction for an

abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam). Because

we have concluded that Transportation Code section 552.002 is not appropriate for negligence per

se, we conclude the trial court did not abuse its discretion by denying Babiy’s requested instruction.

We overrule her second issue.

                                           CONCLUSION

       We conclude the evidence is legally and factually sufficient to support the jury’s verdict

and that Babiy was not entitled to the requested instruction on negligence per se. Accordingly, we

overrule her issues and affirm the trial court’s judgment.




                                                    /Erin A. Nowell/
                                                    ERIN A. NOWELL
                                                    JUSTICE

171122F.P05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CIA BABIY, Appellant                                On Appeal from the 416th Judicial District
                                                     Court, Collin County, Texas
 No. 05-17-01122-CV          V.                      Trial Court Cause No. 416-04069-2015.
                                                     Opinion delivered by Justice Nowell.
 RAMZI MORGAN KELLEY, Appellee                       Justices Schenck and Reichek participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee RAMZI MORGAN KELLEY recover her costs of this
appeal from appellant CIA BABIY.


Judgment entered this 14th day of March, 2019.




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