Opinion
No. 11-06-00229-CV
Opinion filed March 27, 2008.
On Appeal from the 358th District Court Ector County, Texas, Trial Court Cause No. D-119,693.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This appeal arises from a take-nothing judgment entered after a jury trial. Appellant, Franchesca L. Flores, sued appellee, Garland Marshall, for injuries arising from an automobile accident. The jury found that the accident was not caused by appellee's negligence. In a single issue, appellant challenges the factual sufficiency of the evidence supporting the jury's answer. We affirm.
Standard of Review
If a party is challenging a finding regarding an issue upon which that party had the burden of proof, the moving party must demonstrate that the adverse finding is against the "great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). In reviewing an issue asserting that a finding is "against the great weight and preponderance" of the evidence, we must consider and weigh all of the evidence and set aside the finding only if the evidence is so weak or the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242; In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Analysis
Appellee testified that the accident occurred on December 10, 2004, when he pulled out of the parking lot of McCoy's on to 42nd Street in Odessa. In order to travel west on 42nd Street, appellee crossed three eastbound lanes and a center turn lane to reach a westbound lane. The collision occurred in the inside westbound lane when appellee's vehicle struck appellant's vehicle. Appellee testified that he looked for oncoming westbound traffic prior to entering the inside westbound lane but that he did not see appellant's vehicle approaching. Appellee also testified that there were no obstructions on the roadway that would have hampered his view of oncoming traffic. The occurrence of an automobile accident does not establish negligence as a matter of law. Rankin v. Nash-Tex. Co., 105 S.W.2d 195, 199 (Tex. 1937); Gomez v. Adame, 940 S.W.2d 249, 252 (Tex.App.-San Antonio 1997, no writ). The plaintiff has the burden of proving specific acts of negligence on the part of the defendant and of proving that such negligence was a proximate cause of the accident. Gomez, 940 S.W.2d at 252. Whether the plaintiff succeeds in proving these elements by a preponderance of the evidence is a matter for the jury to determine. Id.
All persons have the duty to maintain a proper lookout and to observe in a careful manner the traffic and general situation while driving. See Lynch v. Ricketts, 314 S.W.2d 273, 275 (Tex. 1958); Gomez, 940 S.W.2d at 251. Appellee testified that he looked for oncoming traffic prior to entering the inside westbound lane. In light of this evidence, it was within the jury's province to determine if appellee maintained a proper lookout. After reviewing the entire record, we do not find that the jury's determination is so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant's sole issue is overruled.
This Court's Ruling
The judgment of the trial court is affirmed.