Affirmed and Memorandum Opinion filed June 14, 2012.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-11-00396-CV

                    DONALD AND DORIS YOUNG, Appellants

                                          V.

                     DON RAYMON CLAPSADDLE, Appellee


                       On Appeal from the 10th District Court
                             Galveston County, Texas
                         Trial Court Cause No. 07CV1338


                  MEMORANDUM                       OPINION

      In a sole issue, appellants Donald and Doris Young challenge the factual
sufficiency of evidence underlying the jury’s “no” answer to a negligence question
submitted against appellee Raymond Clapsaddle. We affirm.

                                     Background

      On August 11, 2007 Clapsaddle backed his vehicle into pedestrian Donald Young
in the parking lot of the Kemah post office. The parking lot was crowded. The incident
occurred as Donald was walking back to the post office from his truck after realizing he
did not have the correct mail, and Clapsaddle was backing out of his parking spot.
Clapsaddle testified that he reversed slowly and checked his surroundings before backing
out of the parking spot. Donald testified that he was being careful and paying attention as
he crossed the parking lot and the vehicle reversed so quickly he did not have enough
time to move out of the way. Donald had earlier testified in a deposition that he was not
“especially looking for any [vehicles’] warning lights. When hit by Clapsaddle’s vehicle,
Donald fell, causing a head wound, a hand injury, and back pain. Doris, Donald’s wife,
heard moaning, got out of their truck, and found her husband lying on the ground. Doris
did not see the accident.1

        Emergency response personnel arrived, and Donald was taken to the hospital. The
on-site paramedic testified that Donald told her he was “bumped” by Clapsaddle’s
vehicle.2 Clapsaddle called the Youngs to see how Donald was recovering and
subsequently went to the hospital to take them a copy of the police report. When
Clapsaddle arrived at the hospital, he called Doris. Donald was resting, but Doris told
Clapsaddle that they did not need the police report and Donald wanted him to know the
accident was not his fault.3

        A police sketch showed Clapsaddle’s vehicle completely out of the parking spot at
an angle. Clapsaddle testified the sketch was incorrect because he had backed only three
or four feet, which was not enough to be able to “cut the wheels” as cars were on either
side of him.         Clapsaddle offered two explanations for how the incident may have
occurred: either Donald walked into Clapsaddle’s car or Donald approached Clapsaddle’s
car from an angle where Clapsaddle could not see Donald.

        The case was tried to a jury. The jury was asked whether the negligence, if any, of
Clapsaddle and Donald proximately caused the occurrence in question.                           The jury
answered “no” as to Clapsaddle and “yes” as to Donald. The trial court entered judgment

        1
            Doris speculated that the incident was caused by Clappsaddle reversing too fast.
        2
            Donald disputes having made the statement.
        3
           Doris speculated at trial that Donald meant by this comment “we knew he [Clapsaddle] hit him,
but that it wasn’t an on purpose thing.”

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that the Youngs take nothing from the lawsuit.

                                  Standard of Review

      When a party challenges the factual sufficiency of a finding, we may only set
aside a verdict if the evidence is so weak or the findings so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001). We may not substitute our judgment for that
of the fact-finder even if the evidence “would clearly support a different result.” Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Jurors are the sole judges of
the credibility of the witnesses and the weight to give their testimony. City of Keller v.
Wilson, 168 S.W.3d 802, 819 (Tex. 2005).         To determine whether the evidence is
factually sufficient to support a finding, we must review all the evidence in the record,
including evidence that supports and contradicts the finding. Arrellano v. State Farm
Fire & Cas. Co., 191 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

                                       Discussion

      At trial, the Youngs had the burden of proof to show, by a preponderance of the
evidence, that Clapsaddle was negligent and did not act as a reasonable and prudent
person when he reversed out of his parking space. The jury heard the evidence from both
sides. When confronted with conflicting evidence, the jury may choose which witnesses
to believe and may resolve inconsistencies in any witness’s testimony. Spring Creek Vill.
Apartments Phase V, Inc. v. Gen. Star Indem. Co., 261 S.W.3d 206, 216-17 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

      Donald testified he cautiously crossed the parking lot and was paying attention to
where he was walking when Clapsaddle’s vehicle reversed so quickly he did not have
time to react. The police sketch depicted Clapsaddle’s vehicle completely out of the
parking space at an angle.

      Clapsaddle testified he was very cautious that day, checked all of his mirrors,
looked behind him while backing out very slowly, and did not see Donald. Clapsaddle

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also testified the police sketch was wrong and he had only backed three or four feet when
he collided with Donald. Cars were parked on either side of Clapsaddle’s vehicle so he
could not have “cut his wheels” to angle the vehicle. The jury also heard that Donald
said he was “bumped” by the car, Donald was not looking for warning lights, and Donald
said the accident was not Clapsaddle’s fault.

       Factually sufficient evidence supported both Donald’s and Clapsaddle’s versions
of how the accident occurred.      At a minimum, the evidence presented at trial was
sufficient to enable reasonable and fair-minded people to differ in their conclusions.
Because this evidence falls within the zone of reasonable disagreement, we decline to
substitute our judgment for that of the jury. See Ace Am. Ins. Co. v Marez, No. 14-06-
00592-CV, 2007 WL 1086991, at *7 (Tex. App.—Houston [14th Dist.] Apr. 12, 2007, no
pet.) (citing City of Keller, 168 S.W.3d at 827). Thus, after considering and weighing all
of the evidence, both supporting and conflicting with the jury’s findings, we conclude the
jury’s verdict is not so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Id. We therefore hold that the evidence is factually sufficient
to support the jury's verdict and overrule the Youngs’ sole issue.

       We affirm the judgment of the trial court.




                                   /s/              Martha Hill Jamison
                                                    Justice


Panel consists of Justices Boyce, Christopher, and Jamison.




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