Opinion
No. 05-02-01778-CV
Opinion Filed October 20, 2003
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-01684-01
AFFIRM
Before Justices MOSELEY, RICHTER and FRANCIS.
MEMORANDUM OPINION
This is an automobile negligence case involving a collision between a sport utility vehicle drive by appellee and a motorcycle driven by appellant. The jury returned a verdict finding appellee was not negligent and that appellant was 100% at fault for the accident. The appellant raises four issues on appeal contending the no negligence finding on the part of the appellee is against the great weight and preponderance of the evidence, the trial court erred in denying appellant's motion for a directed verdict, the court erred in submitting a contributory negligence instruction to the jury, and there is no evidence or insufficient evidence of appellant's contributory negligence. We affirm the judgment of the trial court. The facts are known to the parties and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1.
A challenge that the jury's verdict is against the great weight and preponderance of the evidence so as to be manifestly unjust is akin to a factual sufficiency challenge. Piatt v. Welch, 974 S.W.2d 786, 789 (Tex.App.-El Paso 1998, no pet.) ; Perez v. Lopez, 74 S.W.3d 60, 64-65 (Tex.App.-El Paso 2002, no pet.). When the party having the burden of proof complains of an unfavorable finding, the issue should allege that the findings "are against the great weight and preponderance of the evidence." Piatt at 789. The "insufficient evidence" issue is appropriate when the party without the burden of proof on an issue complains of the fact finder's findings. Id.
The test for factual insufficiency issues is set forth in the seminal case In re King's Estate, 244 S.W.2d 660, 661-62 (1951). See also, Cushman Wakefield, Inc. v. Fletcher, 915 S.W.2d 538, 543 (Tex.App.-Dallas 1995, writ denied); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. Perez at 64-65. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ); Perez at 65. The jury's finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Perez at 65. Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury. Id. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained. Id.
In this case, we have exhaustively reviewed the record and conclude that the verdict is not against the great weight and preponderance of the evidence. For example, there was evidence in the record that appellee had a green light when she proceeded to cross the intersection in question. The evidence further indicates that the accident had already occurred within three to four seconds of appellant's light changing to green. A jury could reasonably conclude appellant timed the light so as to proceed through the intersection almost contemporaneously with the light turning green. A police officer testified that once a driver such as appellee enters an intersection on a green light, he or she has the right of way to complete crossing the intersection even if the light changes to yellow or red while that person is in the intersection. In addition, there were certain inconsistencies in appellant's rendition of the facts during his testimony. We conclude there was sufficient evidence to support the verdict, and the jury was free to resolve any conflicts in the evidence. The verdict was not contrary to the great weight and preponderance of the evidence.
Because we conclude that the finding of no negligence on the part of the appellee was not erroneous, we need not reach the three remaining issues asserted by the appellant. These remaining three issues deal with appellant's contributory negligence, and any error in their resolution by the trial court would be harmless error in light of our disposition of appellant's first issue. Because appellee was not negligent, any issue concerning appellant's negligence becomes moot.
We affirm the judgment of the trial court.