      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00038-CV



                               Jimmy Anderson Jarrett, Appellant

                                                   v.

                        Sherry Shook and Lester A. Vaughan, Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
       NO. 10-009-C368, HONORABLE PHILLIP ZEIGLER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Jimmy Anderson Jarrett appeals from a judgment rendered against him after a jury

found that his negligence caused an automobile accident in which Sherry Shook, a passenger in a

vehicle driven by Lester A. Vaughan, was seriously injured. Jarrett challenges the legal and factual

sufficiency of the evidence supporting the jury’s finding that his negligence was solely responsible

for the accident. Jarrett also asserts that the trial court erred by denying his motion for judgment non

obstante veredicto and his motion for new trial. We will affirm.


                                          BACKGROUND

                Shook was a passenger in the back seat of Vaughan’s vehicle when it was involved

in a collision with Jarrett’s vehicle. Jarrett, who had been traveling south on South Mays Street in

Round Rock, had come to a stop at the intersection of South Mays Street and East Logan Street.

Intending to make a left turn onto Logan, Jarrett’s vehicle was stopped in the intersection waiting
for oncoming traffic to clear. Vaughan’s vehicle was traveling north on South Mays Street. Jarrett’s

and Vaughan’s vehicles collided when Jarrett started to make his left turn and was hit by Vaughan.

Shook was taken by ambulance to Seton Hospital where she remained for 22 days before being

discharged to continue her recovery at home.

               Thereafter, Shook sued Jarrett alleging that his negligence proximately caused her

injuries. Jarrett filed a general denial and a third-party petition against Vaughan asserting that

Vaughan’s negligence contributed to the accident and seeking contribution or indemnity from

Vaughan in the event liability was assessed against him. The case was tried to a jury. Question

No. 1 of the jury charge asked: “Did the negligence, if any, of any of those named below

proximately cause the occurrence in question?” The jury answered “Yes” as to Jarrett and “No” as

to Vaughan. Having answered “Yes” to only one of the two, the jury did not answer Question No. 2

of the charge, which asked: “With respect to causing or contributing to cause in any way the

occurrence in question, find the percentage of responsibility, if any, attributable as between or among

[Jarrett and Vaughan.]” As a result, the trial court rendered judgment that Jarrett pay all of Shook’s

damages resulting from the accident—$552,171.151. Jarrett then perfected this appeal.


                                           DISCUSSION

               In his first issue, Jarrett contends that the evidence was legally and factually

insufficient to support the jury’s finding that his negligence alone proximately cause the accident and

that Vaughan’s did not. Jarrett asserts that the evidence was insufficient to support a finding that he

was solely responsible for Shook’s injuries. In his view, Vaughan was also negligent and such

negligence contributed to the accident.

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               When, as here, a party attacks the legal sufficiency of the evidence supporting an

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

the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Corp.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing Sterner v. Marathon Oil Co.,

767 S.W.2d 686, 690 (Tex. 1989)). The reviewing court must first examine the record for evidence

that supports the finding, while ignoring all evidence to the contrary unless a reasonable fact finder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Dow Chem. Corp., 46 S.W.3d

at 241. If there is no evidence to support the finding, the reviewing court will then examine the

entire record to determine if the contrary proposition is established as a matter of law. Dow Chem.

Corp., 46 S.W.3d at 241. We will sustain a legal-sufficiency challenge only if the contrary

proposition was conclusively established. Id.

               In a factual-sufficiency review, we consider and weigh all the evidence, both

supporting and contradicting the finding. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,

406-07 (Tex. 1998). A party attacking the factual sufficiency of the evidence supporting an adverse

finding on which he had the burden of proof must demonstrate that the finding is against the great

weight and preponderance of the evidence. Dow Chem. Corp., 46 S.W.3d at 242. We set aside the

finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute our

judgment for that of the trier of fact or pass on the credibility of the witnesses. See Maritime

Overseas Corp., 971 S.W.2d at 407. When presented with conflicting evidence, the trier of fact may




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believe one witness and disbelieve others and may resolve inconsistencies in the testimony of any

witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).


Legal sufficiency

               We begin our legal-sufficiency review by reviewing the record for evidence that

supports the jury’s failure to find that Vaughan’s “negligence, if any, [] proximately caused” the

accident. We will ignore all evidence to the contrary unless a reasonable fact-finder could not. City

of Keller, 168 S.W.3d at 827. Jarrett testified:


       [O]nce I got to the turning lane, the light was green and I inched out. There was—I
       remember only seeing one car coming which was Mr. Vaughan’s. Other than that,
       there wasn’t much traffic. So I inched out into the intersection. While I was out
       there, the light turned yellow. I noticed a car in the turning lane on Logan. And I
       looked over to make sure, you know, I had a clear path to turn. And then I waited a
       couple of more seconds, and I seen the car. It was a pretty good ways back. I thought
       it was going to stop. And once the light turned red, I went ahead and made my turn,
       and that’s when the collision happened.


After the accident, Jarrett was ticketed for failing to yield the right-of-way.

               Vaughan testified that as he approached the intersection and came to the edge of it

he glanced up and saw that the light was yellow. He stated that he was traveling at the posted speed

limit and was not trying to “beat a yellow light or beat a red,” but instead was simply going through

the intersection on a caution light. According to Vaughan, he never saw the van sitting in the

intersection when “all of a sudden” the van was in front of him. Vaughan testified that he did not

have time to hit his brakes and did not honk because he “was expecting to go right through the

intersection” and did not have any reason to honk. Contrary to Jarrett’s argument, Vaughan’s



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testimony provides some evidence that Vaughan acted with ordinary prudence and therefore

constitutes legally sufficient evidence to support the jury’s finding that Vaughan was not negligent.

The jury could have reasonably inferred that Vaughan’s conduct did not violate any standard of care

and was not negligent. Having found some evidence to support the jury’s failure to find Vaughan

negligent, we need not conduct the second prong of the legal-sufficiency analysis, i.e., determining

whether an examination of the entire record reveals that the converse of the jury finding was

conclusively established. See Dow Chem. Corp., 46 S.W.3d at 241-42.


Factual sufficiency

               We next consider Jarrett’s factual-sufficiency challenge to Question No. 1. In doing

so, we consider and weigh all the evidence, both supporting and contradicting the finding, and

determine whether the jury’s failure to find Vaughan negligent is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. See Pool, 715 S.W.2d at 635. Jarrett

points to evidence that Vaughan did not brake before the collision, did not swerve to avoid the

accident, and did not see Jarrett’s van in the intersection. He contends that this is overwhelming

evidence of Vaughan’s negligence. However, in order for Vaughan to be charged with the duty of

taking the evasive actions Jarrett describes, and therefore to be negligent in failing to take them, he

would have had to foresee that Jarrett would fail to yield the right of way and would make an illegal

left turn in front of him. There was no evidence that Vaughan could have expected or anticipated

that Jarrett would turn in front of him. Nor was there evidence that Vaughan should have foreseen

or predicted that Jarrett would fail to yield the right of way. See Salinas v. Briggs Ranches,

350 S.W.3d 218, 227 (Tex. App.—San Antonio 2011, no pet.) (no duty imposed when conduct

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causing accident was not foreseeable); Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 465 (Tex.

App.—Fort Worth 2002, no pet.) (test for foreseeability is what one should, under the circumstances,

reasonably anticipate as consequence of his or her conduct).

                Moreover, while Jarrett testified that Vaughan could have avoided the accident,

Vaughan testified that he did not have time to brake and did not see the vehicle in the intersection.

The jury finding indicates that it reached the conclusion that Vaughan could not reasonably have

avoided hitting Jarrett’s vehicle. Jarrett essentially asks us to substitute our opinion for that of the

jury by finding his testimony more credible than Vaughan’s. We may not, however, pass on the

witnesses’ credibility or substitute our judgment for that of the jury. See Pool, 715 S.W.2d at 634.

We conclude that the evidence supporting the jury’s finding that Vaughan’s negligence, if any, did

not proximately cause the accident was not so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. We hold the evidence is factually sufficient to support

the judgment. We overrule Jarrett’s first appellate issue.

                In his second issue, Jarrett contends that the trial court erred by failing to grant his

motion for judgment non obstante veredicto and his motion for new trial. In his motion for judgment

non obstante veredicto, Jarrett asked the trial court to disregard the jury’s answer to Question No.

1 and render judgment that Vaughan was at least partly responsible for the accident. In the motion

for new trial, Jarrett asserted that the trial court should order a new trial for the same reasons he

asserts in support of his factual- and legal-sufficiency challenges to Question No. 1. Because we

have already concluded that the evidence is both factually and legally sufficient in this regard, we

hold that the trial court did not abuse its discretion by denying the motions. Accordingly, we



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overrule Jarrett’s second issue. Because of our disposition of the first two issues, we need not

address the third issue, in which Jarrett argues that on remand of the cause, both liability and

damages must be re-tried.


                                        CONCLUSION

               The evidence was legally and factually sufficient to support the jury’s finding that

Vaughan was not responsible for causing the collision with Jarrett. The trial court’s judgment

is affirmed.



                                             _____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: September 27, 2012




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