                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00185-CV

STACY HAUSCHILDT, INDIVIDUALLY,
AND AS NEXT FRIEND OF A. X. AND J.H.,
MINORS, AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
NICHOLAS XIONG, DECEASED, AND
CHARLES HAUSCHILDT,
                                                          Appellants
v.

CENTRAL FREIGHT LINES, INC., AND
JACKIE L. STEWART,
                                                          Appellees


                         From the 413th District Court
                            Johnson County, Texas
                          Trial Court No. C200800401


                         MEMORANDUM OPINION


      This is a case for personal injuries and wrongful death resulting from a rear-end

collision involving the Hauschildts and Jackie Stewart. Based upon a jury finding that

Stewart was not negligent, the trial court rendered judgment that the Hauschildts take

nothing from Stewart and his former employer, Central Freight Lines. We affirm.
                                            BACKGROUND FACTS

           Charles and Stacy Hauschildt are the parents of J.H. Stacy is also the mother of

A.X. and Nicholas Xiong.1 Charles, Stacy, and the three children were traveling on

Interstate 35 from San Antonio to Dallas, and Charles was driving. The left lane of the

interstate was closed thus creating a single line of traffic and a slow down at the point

of the bottle neck. The Hauschildts claimed their vehicle was stopped on the interstate

as a result of the lane closure. Stewart was driving a commercial truck, commonly

known as a tractor, and pulling two trailers.                       Stewart’s tractor rear-ended the

Hauschildts’s vehicle injuring Charles, Stacy, A.X. and J.H. Nicholas Xiong was killed

in the collision.

                                      SUFFICIENCY OF THE EVIDENCE

           In the first issue on appeal, the Hauschildts argue that the trial court erred in

submitting the negligence question to the jury and denying their motion for directed

verdict.       In the second issue, the Hauschildts contend that the great weight and

preponderance of the evidence proved Stewart’s negligence proximately caused the

collision.

Standard of Review

           We review a challenge to a trial court's denial of a motion for directed verdict the

same as we would review a challenge to the legal sufficiency of the evidence. City of

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). When a party challenges the legal

sufficiency of the evidence to support an adverse finding on which it had the burden of

1   The father of A.X. and Nicholas Xiong is not a party to this appeal.

Hauschildt v. Central Freight Lines, Inc.                                                     Page 2
proof, the party must show 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).

         Under a legal sufficiency standard of review, we view the evidence in the light

most favorable to the finding and indulge every reasonable inference that supports it.

Keller v. Wilson, 168 S.W.3d at 822. We credit favorable evidence if a reasonable fact-

finder could, and disregard contrary evidence unless a reasonable fact-finder could not.

Id. at 827. We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of

law or evidence from giving weight to the only evidence offered to prove a vital fact, (3)

the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the

evidence conclusively establishes the opposite of a vital fact. Id. at 810.

        In reviewing a factual sufficiency challenge, we consider all of the evidence and

uphold the finding unless the evidence is too weak to support it or the finding is so

against the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Stewart’s Negligence

        The Hauschildts argue that the evidence proved as a matter of law that Stewart’s

negligence proximately caused the collision. The central issue is the amount of time

that Stewart had to react to the Hauschildts’s vehicle in the interstate. That evidence is

conflicting.

        Officer David Wardlaw investigated the accident. Officer Wardlaw is certified in

accident investigation, but not in accident reconstruction. Officer Wardlaw measured

Hauschildt v. Central Freight Lines, Inc.                                              Page 3
the distance from the crest of the hill to the point of impact at 1400 feet. Officer

Wardlaw found that a vehicle traveling 65 miles per hour would have approximately

14.5 seconds to react from the crest of the hill to the point of impact. The Hauschildts

argue Stewart either saw the Hauschildts’s vehicle the entire 1400 feet and failed to

react or that he should have seen the vehicle if he was keeping a proper lookout.

        Charles testified that he was stopped on the interstate for two to three minutes

and that no other vehicle came up behind him during that time. Charles stated that he

stopped directly behind the car in front of him in the right hand lane. However, the

parties agree that the Hauschildts’s vehicle traveled 100 feet from impact until it went

off the right side of the interstate and did not hit another vehicle. Stewart’s truck also

continued in the right lane without hitting another vehicle.

        Stewart testified that as he approached the crest of the hill, he saw the line of

cars. Stewart could not tell if the cars were moving or sitting still. Stewart took his foot

off of the accelerator and the “Jake brake” automatically started slowing down the

truck. Stewart looked away briefly to check his rear-view mirrors. When he looked

back, he saw the Hauschildts’s vehicle stopped in the right lane. Stewart said there was

a gap between the Hauschildts’s vehicle and the traffic ahead.       Stewart testified that

impact occurred almost immediately after he saw the Hauschildts’s vehicle.

        The Hauschildts characterize a portion of Stewart’s testimony as showing that he

saw the Hauschildts’s vehicle at the crest of the hill, 1400 feet before impact. However,

Stewart specifically testified at trial that he did not see the Hauschildts’s vehicle 1400

feet away and that he only saw the vehicle immediately before impact.

Hauschildt v. Central Freight Lines, Inc.                                             Page 4
        The Hauschildts contend that Stewart had at least 1400 feet and 14 seconds in

which he either saw or should have seen their vehicle and that his failure to do so

proves his negligence. But, according to Stewart, he saw the line of traffic ahead and

began to slow down to assess the situation. Further, Stewart testified that he was

maintaining a proper lookout, and only briefly looked away to check his rear-view

mirror. The jury could find it reasonable for a driver to briefly check the rear-view

mirror when slowing on the interstate while approaching traffic. There was evidence

that there was a gap between the Hauschildts’s vehicle and the other traffic.

        Appropriate deference must be given to the jury's determination, especially

concerning its judgment on the weight and credibility of witness testimony because it is

the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Nat'l Freight, Inc. v. Snyder, 191 S.W.3d 416, 425 (Tex. App.—Eastland 2006,

no pet.). Viewing all of the evidence, a reasonable fact-finder could determine that

Stewart was not negligent. The jury’s finding of no negligence is not so against the

overwhelming weight of the evidence as to be manifestly unjust. We overrule the first

and second issues.

                                            JURY CHARGE

        In the third issue, the Hauschildts argue that the trial court erred in submitting

the negligence question with respect to Charles because there was no evidence to

support the submission. In the fourth issue, the Hauschildts complain that the trial

court erred in instructing the jury on unavoidable accident and emergency.




Hauschildt v. Central Freight Lines, Inc.                                           Page 5
Charge on Charles’s Negligence

        Question 1 of the charge asked: “Did the negligence, if any, of those named

below proximately cause the occurrence in question?” The charge then instructs the

jury to answer “Yes” or “No” for each of the following:

    a. Jackie L. Stewart

    b. Charles Hauschildt

The jury answered “No” for both Stewart and Charles.

        Because the determination of whether or not a legal duty exists under a given set

of facts to warrant the submission of a comparative negligence question is essentially a

question of law, it is reviewable de novo. Block v. Mora, 314 S.W.3d 440, 444(Tex.

App.—Amarillo 2009, no pet.). Submission to the jury of a comparative fault question is

not allowed without sufficient evidence to support the submission. See TEX. CIV. PRAC.

& REM. CODE ANN. § 33.003(b) (Vernon 2006). To determine whether legally sufficient

evidence supported the submission of Charles’s negligence to the jury in a comparative

fault question, we must first examine the record for evidence supporting his negligence

and ignore all evidence to the contrary. Block v. Mora, 314 S.W.3d at 445-6.

        There is evidence that the Hauschildts’s vehicle driven by Charles was stopped

in the right hand lane of the interstate for two to three minutes. There was a gap

between the Hauschildts’s vehicle and the line of traffic ahead. There is no evidence

that Charles activated the hazard lights on the vehicle to alert oncoming traffic of his

presence. Further, there was some evidence, as discussed in more detail below, that



Hauschildt v. Central Freight Lines, Inc.                                          Page 6
Charles made a sudden lane change, pulling abruptly into Stewart’s line of travel.

There is sufficient evidence to support the submission of Charles’s negligence.

        Moreover, assuming without agreeing that it was error to submit the issue of

Charles’s negligence, any error was harmless. TEX. R. APP. P. 44.1(a). The jury did not

find that Charles’s negligence proximately caused the collision.        We overrule the

Hauschildts’s third issue on appeal.

Unavoidable Accident and Emergency

        The trial court instructed the jury in Question 1 as follows:

               An occurrence may be an “unavoidable accident,” that is, an event
        not proximately caused by the negligence of any party to the occurrence.

               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.

We review a trial court’s decision to submit a jury instruction for abuse of discretion.

Shupe v. Lindafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court does not abuse its

discretion in submitting an instruction if there is any support in the evidence for it.

Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998).

        The evidence shows that there was a lane closure on the interstate moving traffic

to the right lane. Stewart came over the hill and saw the line of traffic, but did not see

the Hauschildts’s vehicle that was separated from the other traffic. Stewart testified

when he did see the Hauschildts’s vehicle, he did not have time to react. There was


Hauschildt v. Central Freight Lines, Inc.                                             Page 7
some evidence to show that Charles made a sudden lane change. The Hauschildts’s

vehicle suffered more damage on the right side indicating it was at an angle. We find

that there is some evidence to support submitting the instructions on unavoidable

accident and emergency.

        The Hauschildts argue that submitting the instructions was harmful because it

confused the jury and resulted in a finding of no negligence. Any error in the jury

charge is reversible only if, in light of the entire record, it was reasonably calculated to

and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 44.1(a);

Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995). There is no indication that the jury

was confused by the instructions. Stewart introduced evidence to support the jury’s

finding that he was not negligent. Any error in submitting the instruction did not

probably cause the rendition of an improper judgment. We overrule the Hauschildts’s

fourth issue.

                                            CONCLUSION

        We affirm the trial court’s judgment.



                                              TOM GRAY
                                              Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 9, 2011
[CV06]




Hauschildt v. Central Freight Lines, Inc.                                             Page 8
