Affirmed and Memorandum Opinion filed February 10, 2015.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-13-00638-CV

                       VINCENT T. LADAY, Appellant
                                      V.
                    GILBERTO G. PEDRAZA, Appellee

                  On Appeal from the 55th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2011-49767

                MEMORANDUM OPINION

     In this personal injury case, appellant, Vincent T. Laday, appeals the trial
court’s take-nothing judgment rendered against him.       In two issues, Laday
challenges the legal and factual sufficiency of the evidence supporting the
judgment. We affirm.

                               I. BACKGROUND

     At approximately 7:30 p.m. after work, Laday was driving his pickup truck
on Will Clayton Drive in Humble, Texas. The traffic was heavy, and it was
raining. Laday testified that he had come to a stop for a traffic light. A car ahead
of Laday had also stopped. Appellee, Gilbert G. Pedraza, also driving a pickup
truck, attempted to stop for the light. His vehicle struck Laday’s from behind and
Laday claimed injuries. At trial, the jury answered “no” to the question inquiring
whether Pedraza’s negligence caused the occurrence. The jury did not reach the
damages question. The trial court signed a take-nothing judgment in conformity
with the jury’s verdict. Laday appeals.

                                   II. ANALYSIS

      In two issues, Laday contends the evidence was legally and factually
insufficient to support the jury’s “no” answer to the negligence question.

      To prove negligence, a plaintiff must establish duty, breach of that duty, and
damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d
793, 794 (Tex. 2006) (per curiam). Negligence is not established as a matter of
law merely because the defendant’s vehicle rear-ended the vehicle driven by the
plaintiff. See Gaskey v. One Source Sec. and Found, No. 14-07-00850, 2009 WL
7047692, at *1 (Tex. App.—Houston [14th Dist.] Jun. 18, 2009, no pet.) (mem.
op.) (citing Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—
Houston [14th Dist.] 1989, writ denied)). Rather, the plaintiff must prove that the
defendant’s specific acts were negligent, and that they proximately caused the
plaintiff’s damages. See Cent. Freight, 774 S.W.2d at 412. Whether a rear-end
collision resulted from negligence depends on all the facts and circumstances of
the particular case. See Pearson v. DeBoer, 99 S.W.3d 273, 276 (Tex. App.—
Corpus Christi 2003, no pet.)

      The test for legal sufficiency is whether the evidence at trial “would enable
reasonable and fair-minded people to reach the verdict under review.” City of
                                          2
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must view the evidence in
the light most favorable to the verdict, crediting any favorable evidence if a
reasonable fact-finder could and disregarding any contrary evidence unless a
reasonable fact-finder could not. City of Keller, 168 S.W.3d at 827. We assume
jurors made all inferences in favor of their verdict if reasonable minds could, and
disregard al other inferences. Id. at 821. We cannot substitute our judgment for
that of the jury, so long as the evidence falls within the zone of reasonable
disagreement. See id. at 822. As the party with the burden of proof, Laday must
conclusively demonstrate all vital facts in support of the issue such that the
evidence conclusively demonstrates the opposite of the jury’s finding. See Dow
Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

      In his legal-sufficiency challenge, Laday contends that Pedraza admitted he
caused the collision and some injury to Laday, contesting only the extent of the
injuries, and that all elements of negligence were established without contradiction.
Laday also suggests that various statements by Pedraza qualified as judicial
admissions, which compelled a jury finding that Pedraza was negligent as a matter
of law. A judicial admission is a formal waiver of proof that usually arises in the
pleadings or a stipulation of the parties. See Gaskey, 2009 WL 7047692, at *2
(citing Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694
(Tex. 1980)). An admission relieves the opposing party’s burden to prove an
admitted fact. Id. Further, to the extent Pedraza’s testimony was contrary to his
position, they were quasi-admissions. Id. While they may have constituted some
evidence, they were not conclusive on Pedraza. Id. Only the jury determines the
weight of the alleged admissions. Id.

      Laday asserts Pedraza’s testimony, including his admissions, established
Pedraza was at fault and his actions caused the collision. Pedraza admitted on

                                         3
cross-examination that the collision occurred when he failed to control the speed of
his vehicle under the conditions. However, Pedraza also testified that there was
heavy traffic in the area, and cars were stopping and starting as they approached
the light. Additionally, Pedraza testified the roads were wet, he was approximately
20 feet behind Laday’s vehicle when he started braking, and he was traveling only
10-15 miles per hour (below the posted speed limit of 35) when he slid into
Laday’s bumper. Pedraza also testified Laday did not appear to be injured at the
scene.

         Laday testified the accident caused his vehicle to hit the car front of him, and
the driver of that car exited his vehicle, but did not follow Laday and Pedraza to
the gas station where Laday and Pedraza discussed the collision. Further, Laday
testified he had been injured in a prior accident and had obtained disability license
plates, which require the note of a physician to document the disability. Laday
also told the jury that Pedraza said “I’m sorry” after the accident; however, in his
deposition, Laday did not mention Pedraza’s alleged statement.

         Laday had the burden of proving Pedraza was negligent and that his
negligence was a proximate cause of the occurrence. See Kroger, 197 S.W.3d at
794. When we view the totality of the testimony, we conclude that Laday has not
demonstrated the evidence conclusively established all vital facts in support of the
negligence finding. See Dow Chemical, 46 S.W.3d at 241; see also Briones v.
Sharkey, No. 04-11-00584-CV, 2012 WL 3776488, at *6 (Tex. App.—San
Antonio, Aug. 31. 2012, no pet.) (mem. op.) (holding jury could determine the
evidence did not prove negligence where there was an attack on plaintiff’s
veracity); Benavente v. Granger, 312 S.W.3d 745, 748–49 (Tex. App.—Houston
[1st Dist.] 2009, no pet.) (concluding negligence not established even though
driver testified he was at fault when he rear-ended vehicle because driver further

                                             4
testified he was driving more slowly than surrounding traffic); Jordan v. Sava,
Inc., 222 S.W.3d 840 (Tex. App.—Houston [1st. Dist.] 2007, no pet.) (concluding
jury’s “no” answer to negligence question upheld where there was no evidence
driver was speeding and driver testified he was traveling at the same speed as
general traffic). We overrule appellant’s first issue.

      In his second issue, Laday contends the evidence is factually insufficient to
support the final judgment. When considering a factual-sufficiency challenge to a
jury’s verdict, we must review and weigh all the evidence, not just the evidence
supporting the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07
(Tex. 1998). When the appellant bears the burden of proof at trial, we set aside a
fact finding only if it is so contrary to the great weight and preponderance of the
evidence as to be clearly wrong and unjust. See Mar. Overseas Corp., 971 S.W.2d
at 407. As with a legal-sufficiency challenge, we may not substitute our judgment
for that of the jury. Id. The jury is the sole arbiter of the credibility of the
witnesses and the weight to be given their testimony. See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003).

      Laday asserts he established that Pedraza was operating the truck, Pedraza’s
truck was following him, and Pedraza rear-ended Laday’s vehicle.           Pedraza
testified the vehicles were about halfway between intersections, and the vehicles
“kept going stopping and going and stopping” and “on one of those times we went,
he [Laday] stopped and I failed to stop on time . . . it was an accident.” Laday
testified he did not see Pedraza’s truck before Laday was hit, and Laday did not
hear brakes or tires squealing prior to the collision.

      It is “uniquely within the jury’s province to determine whether plaintiff
succeeded in proving negligence by a preponderance of the evidence.”           See
Gaskey, 2009 WL 7047692, at *3 (citing Klein v. Brown-Griffin Texas Distribs.,

                                           5
Inc., 562 S.W.2d 910, 911 (Tex. Civ. App.—Amarillo 1978, writ ref’d n.r.e.)); see
also Whinery v. Mission Petroleum Carriers, Inc., No. 07-02-0073, 2003 WL
255398, at *3–5 (Tex. App.—Amarillo Apr. 30, 2003, pet. denied) (mem. op.)
(concluding finding was not against the great weight and preponderance where
driver was operating vehicle below posted speed limit on wet roads and in heavy
traffic).

       Having considered the record, we cannot conclude that the jury’s verdict
was so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. See Mar. Overseas Corp., 971 S.W.2d at 407. We overrule appellant’s
second issue.

       We affirm the trial court’s judgment.




                                       /s/       John Donovan
                                                 Justice


Panel consists of Justices Boyce, Jamison, and Donovan.




                                             6
