                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

    CATHERINE ST. GERMAIN,                               §
                                                                           No. 08-13-00304-CV
                                  Appellant,             §
                                                                              Appeal from the
    v.                                                   §
                                                                            134th District Court
    ANDREW CARTER AND BILLY                              §
    SCHOPPE,                                                              of Dallas County, Texas
                                                         §
                                  Appellees.                              (TC# DC-11-12463-G)
                                                         §

                                                 OPINION

         Appellant Catherine St. Germain was a passenger in a Camaro being driven by her

co-worker Andrew Carter, when Carter swerved to avoid a ladder lying across his lane on

Interstate 30, and struck a truck that Billy Schoppe had driven onto the emergency lane.

Catherine filed suit against both Carter and Schoppe for negligence.1 The jury answered “no” to

the question whether Carter’s negligence and/or Schoppe’s negligence, if any, proximately caused

the occurrence in question. The trial court rendered a take-nothing judgment on the jury’s verdict

and subsequently denied Catherine’s motion for new trial. On appeal, Catherine contends the

jury’s negative finding as to Carter is against the great weight and preponderance of the evidence



1
  Catherine suffered several injuries in the collision, including an injury to her right ankle, which was eventually
surgically repaired.
and should therefore be set aside and a new trial ordered. We affirm.2

                                                   DISCUSSION

         In her sole issue on appeal, Catherine contends the jury’s refusal to find that Carter was

negligent and that his actions were the proximate cause of her injuries is against the great weight

and preponderance of the evidence. Catherine asserts that despite heavy traffic conditions, Carter

was travelling at 60 mph following only one-car length behind a white car, when the white car

suddenly swerved out of its lane to avoid the ladder. It was only then that Carter saw the ladder in

the roadway. She argues that the jury should have placed at least some negligence on Carter

because ordinary care dictates that one not travel at 60 mph in heavy traffic keeping only one-car

length behind the vehicle ahead.3

                                                 Standard of Review

         When a party had the burden of proof on an issue at trial and challenges the factual

sufficiency of the jury’s verdict against her on appeal, the party must demonstrate that the verdict

is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46

S.W.3d 237, 242 (Tex. 2001); Miller v. Churches, 418 S.W.3d 749, 751 (Tex.App. – Dallas 2013,

no pet.); Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 82 (Tex.App. – El Paso 2007, pet.

denied). We must consider and weigh all the evidence, and we can set aside a verdict only if the

evidence is so weak or is so against the great weight and preponderance of the evidence that it is

clearly wrong and unjust. Dow Chemical Co., 46 S.W.3d at 242. We are not permitted to pass
2
  This case was transferred from the Fifth Court of Appeals in Dallas, and we decide it in accordance with the
precedent of that court to the extent required by TEX. R. APP. P. 41.3.

3
  Catherine also argues that if the evidence supports a finding that Carter was negligent, the defense of sudden
emergency is not available to him, and also argues that the granting of a new trial as to Carter requires a new trial as to
Schoppe as well. We do not reach these sub-issues, since we conclude the jury’s negative finding as to Carter is not
against the great weight and preponderance of the evidence.

                                                            2
upon witness credibility, nor will we substitute our judgment for that of the jury even if the

evidence would clearly support a different result. Rowlett/2000, Ltd. v. City of Rowlett, 231

S.W.3d 587, 590 (Tex.App. – Dallas 2007, no pet.); Quiroz, 234 S.W.3d at 82. Rather, we will

sustain the challenged finding if there is competent evidence of probative force to support it.

Quiroz, 234 S.W.3d at 82. The fact that we may conclude that the evidence preponderates toward

an affirmative answer based on our review of the record is not an appropriate ground for reversal.

Id.

                                             The Evidence

        Schoppe testified that he was traveling on Interstate 30, in what he described as a “fair

amount” of normal traffic, when he began to see congestion and brake lights, and observed several

cars in front of him at a complete stop and cars in the lanes beside him “stacked back” and

traveling at approximately 10 mph. Schoppe observed a large extension ladder lying across his

whole 12-foot lane and protruding into both the right and left lanes on each side. Schoppe

testified that the ladder was not his, and that he did not see the ladder fall off a vehicle.

        Schoppe drove around the ladder, pulled over onto the shoulder of the highway, and then

reversed his truck and backed-up along the shoulder to get closer to the ladder. According to

Schoppe, traffic in the right lane was moving so slowly he could “walk faster” than the cars

traveling in that lane. Schoppe decided that since traffic was at a virtual stop, he would get the

ladder and pull it off the road to allow the traffic to proceed. After he had stopped his truck,

Schoppe looked out the window and saw Carter’s car coming toward him. He estimated that

Carter’s vehicle was traveling at least 40 mph when it struck his truck. Schoppe believed that




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Carter’s car was traveling at a high rate of speed for the conditions, but agreed that Carter managed

to “thread the needle” and travel between cars after losing control of his vehicle.

       Carter testified that he and Catherine were driving on Interstate 30, during the “after rush

hour wind down.” He stated the traffic was heavy and had caused him to miss his exit, but was

moving at highway speeds. He estimated his car and other cars were traveling near 60 mph.

As Carter approached the area of the collision, he did not notice any stacking of cars. His vehicle

was approximately one-car length behind a white car, when the white car swerved violently to the

left. At that point, Carter saw the ladder lying in the road. He downshifted immediately, looked

left and right, and saw the lanes filled with cars suddenly stacking up. He tried to “hug” the right

lane, but because he could not change lanes, Carter’s vehicle struck the ladder at approximately 40

to 50 mph. Upon striking the ladder, Carter’s vehicle swerved to the right “violently,” and he lost

control. About one second later, Carter’s vehicle struck Schoppe’s truck at approximately 40-45

mph. Carter estimated that he had two seconds to make a decision after seeing the ladder.

       Catherine believed Carter was driving approximately 60 mph, and that the traffic flow was

“medium” with no “stacking” of cars. As Catherine was looking down at Carter’s MP3 player,

she heard Carter make a remark. When she looked up, she saw a ladder in their lane of travel.

Carter’s vehicle swerved right, then left, ran over the ladder, and struck the back end of Schoppe’s

truck in the emergency lane. Before Carter said something to make Catherine look up, she did not

believe Carter was driving in an unsafe manner or that he was driving excessively fast. She

agreed that Carter attempted to avoid the ladder, and acknowledged that Carter “did what he could

with the short amount of time that it happened.”

       Deputy Ben Roberts of the Dallas County Sheriff’s Department read from the report he


                                                   4
made after investigating the accident and interviewing witnesses at the scene. In his report,

Deputy Roberts noted that a faulty evasive maneuver contributed to the accident. Deputy Roberts

determined that Carter’s actions had contributed to the accident, but determined that Schoppe had

done nothing to cause the accident. Deputy Roberts’s testimony indicated that he faulted Carter

because his personal rule for taking appropriate action when debris is in the roadway is, “if it’s not

bigger than you, you hit it.” However, he admitted that it is a natural reaction for a person to

swerve. He also agreed that if Carter had driven over the ladder, it was possible he would have

still lost control of his vehicle, and the accident may have occurred anyway. Deputy Roberts

noted that if the ladder had not been in the roadway, traffic “would have just kept on going fine,”

and Carter would have had no reason to swerve or get into an accident, and the faulty evasive

action would not have occurred. Deputy Roberts testified that he never heard any evidence that

Carter was following another vehicle too closely.

       James Moore, an accident reconstruction expert, concluded that Carter’s vehicle had

approached the area of impact at or near the posted speed limit of 60 mph, and that there was no

“adjusted traffic” in the area when he made contact with the ladder. He stated that Schoppe’s

attempt to remove the ladder from the freeway would have been very dangerous because the ladder

was an unexpected low-profile object and very difficult to see in the diminished light conditions

that existed. Because Moore concluded that there was no congested traffic in the area, Moore also

concluded that Carter’s vehicle was one of the first to approach the ladder after it was on the

ground. He explained that there are only three options for a driver faced with a traffic hazard,

which include doing nothing and plowing right through the hazard, conducting a steering

maneuver, or a stop-and-acceleration maneuver. Most people attempt a braking maneuver or a


                                                  5
steering maneuver, and Moore was not surprised that Carter attempted the steering maneuver.

Moore agreed that if debris or an animal in the roadway is smaller than the vehicle, it is best to hit

the object. After Moore was informed during redirect examination that Carter had testified that

he was traveling one-car length behind the white car, Moore opined that was not a safe distance.

He agreed that but for the ladder in the roadway, the accident, in all probability, would not have

occurred.

       Victor Fuentes, an employee at a nearby car dealership, testified by deposition that he was

standing next to the door inside the dealership when he heard a loud rattling sound. He quickly

walked or ran to the railing that surrounded the perimeter of the car lot, arriving within two

minutes after he heard the sound. Fuentes noted, “There was no traffic at all,” and that he did not

see any traffic congestion. After Fuentes had crossed the access road, he saw a truck reversing,

and then saw a Camaro swerve and strike the truck. Fuentes testified there were no cars in the

Camaro’s path, and there was no traffic in front of the car that swerved in front of the Camaro.

                                              Analysis

       The jury in this case was instructed on the doctrine of sudden emergency, which provides

that a person’s conduct in a sudden emergency is not negligence under certain circumstances:

       “Emergency” If a person is confronted by an emergency arising suddenly and
       unexpectedly, which was not proximately caused by any negligence on his part and
       which, to a reasonable person, requires immediate action without time for
       deliberation, his conduct in such an emergency is not negligence or failure to use
       ordinary care if, after such emergency arises, he acts as a person [of] ordinary
       prudence would have acted under the same or similar circumstances.

In this appeal, Catherine does not argue that Carter was not confronted by a sudden emergency.

Nor does she focus on Carter’s actions after the emergency arose, i.e., Carter’s actions after the

white car swerved and before he saw the ladder in the roadway. Instead, Catherine focuses on

                                                  6
Carter’s actions before the white car swerved and before he was confronted with the ladder lying in

the roadway. She contends that that the sudden emergency doctrine did not apply because the

emergency was caused in part by Carter’s negligence. She argues that the great weight of the

evidence showed that Carter was traveling at 60 mph in heavy traffic conditions, one-car length

behind the white car before it suddenly swerved, and that therefore, the jury’s refusal to place at

least some negligence and proximate cause on Carter was against the great weight and

preponderance of the evidence.

       The problem with Catherine’s argument concerns her premise that Carter was driving in

“heavy traffic conditions.”      The jury heard wildly conflicting evidence regarding traffic

conditions at the time of the accident. That evidence ranged from Fuentes’s testimony there was

“no traffic at all” and no traffic congestion and expert Moore’s conclusion that there was no traffic

congestion, to Catherine’s testimony that traffic was medium but with no stacking of cars, to

Carter’s testimony that traffic was heavy but flowing with no stacking of cars, to Schoppe’s

testimony that traffic was congested and slowed to 10 mph, with some cars stopping and others

“stacking.”

       From this evidence, the jury could have reasonably rejected any argument that Carter was

driving in heavy traffic conditions, and rather could have properly concluded that the traffic

conditions were light to medium and flowing. Based on this conclusion, the jury could have

reasonably rejected both Schoppe’s belief that Carter’s car was traveling at too high a rate of speed

for the conditions and Moore’s opinion that Carter was not traveling a safe distance behind the

white car. Having done that, the jury could have reasonably determined that under the traffic

conditions as they saw them, Carter’s speed and follow-on distance were reasonable and his


                                                 7
actions were not negligent. The reasonableness of the jury’s determination is supported by

Catherine’s own testimony that she did not believe Carter was driving in an unsafe manner or that

he was driving excessively fast, and that Carter “did what he could with the short amount of time

that it happened.”

       When there is conflicting evidence, the jury’s verdict on such matters is generally regarded

as conclusive. Reyes v. Reyes, 458 S.W.3d 613, 616 (Tex.App. – El Paso 2014, no pet.); United

Servs. Auto. Ass’n v. Croft, 175 S.W.3d 457, 463 (Tex.App. – Dallas 2005, no pet.); Dallas County

v. Holmes, 62 S.W.3d 326, 329 (Tex.App. – Dallas 2001, no pet.). We cannot substitute our

judgment for that of the jury even if the evidence clearly supported a different result. See

Rowlett/2000, Ltd., 231 S.W.3d at 590; Quiroz, 234 S.W.3d at 82. Even if we concluded that the

evidence preponderates toward an affirmative answer that Carter was negligent, that would not be

an appropriate ground for reversal. See Quiroz, 234 S.W.3d at 82. Rather, under the record

before us, we must sustain the jury’s refusal to find Carter was negligent, because there is

competent evidence of probative force to support it. See id. Having found that the emergency

was not proximately caused by any negligence on Carter’s part, the jury properly applied the

sudden emergency doctrine, and determined that “his conduct in such an emergency is not

negligence or failure to use ordinary care” as instructed by the trial court.

       Because there is competent evidence to support the jury’s determination that Carter was

not negligent, we need not reach the issue whether the jury’s negative finding on proximate cause

was against the great weight and preponderance of the evidence. See Browning v. Paiz, 586

S.W.2d 670, 673 (Tex.Civ.App. – Corpus Christi 1979, writ ref’d n.r.e.) (“We need not reach the

second inquiry (concerning proximate cause) because we are of the opinion that there is ample


                                                  8
evidence in the record from which the jury could reasonably conclude that Paiz was not

contributorily negligent[.]”).

        We do note, however, that there was ample evidence from which the jury could have

reasonably concluded that the only causes of the accident were two. First, there was the act of

some unknown third party in losing and leaving the ladder on the roadway.4 In this regard, expert

Moore agreed, but for the ladder in the roadway, the accident in all probability would not have

occurred. And, Deputy Roberts also indicated that in the absence of the ladder, traffic would have

proceeded “fine” and Carter would have had no reason to swerve or have an accident. Second,

the white car ahead of Carter waited until the last second to swerve. In this regard, Carter testified

that as he approached the area of the collision, there was no stacking of cars, but yet the white car

swerved violently to the left, setting off the chain of events that resulted in the collision. And,

Fuentes testified that there was no traffic in front of the car that swerved in front of Carter. From

this evidence the jury could have reasonably concluded that the only cause of the accident was a

combination of the ladder being left in the roadway and the white car waiting until the last second

to swerve around the ladder, despite having no traffic to obscure its view of the ladder.

        Having reviewed all of the evidence in the record, we are unable to conclude that the

evidence is so weak or so against the great weight and preponderance of the evidence as to render

the verdict clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242. We therefore conclude

the trial court did not err in denying Catherine’s motion for new trial. Issue One is overruled.

                                               CONCLUSION


4
  Catherine argued at trial that it was Schoppe’s ladder in the roadway. The jury apparently rejected that argument
because they did not find Schoppe negligent. Catherine did not appeal from the jury’s refusal to find Schoppe
negligent.

                                                        9
       The trial court’s judgment is affirmed.


                                             STEVEN L. HUGHES, Justice
September 30, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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