Opinion
NO. 03-17-00510-CV
01-11-2018
John Mattingly and Connie Mattingly, Individually and as Next Friend of Tristan Mattingly, Appellants v. Swisher International, Inc.; and Terry Ray Weber, Appellees
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 43352 , HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
John Mattingly and Connie Mattingly, individually and as next friend of their son, Tristan Mattingly, appeal from a take-nothing judgment in their suit for damages allegedly caused by an automobile collision with Terry Ray Weber. The judgment was based on a jury finding that Weber's negligence was not a proximate cause of the collision. The Mattinglys bring two issues on appeal challenging (1) the factual sufficiency of the evidence supporting the jury's causation finding and (2) the trial court's refusal to grant a motion for directed verdict regarding Tristan Mattingly's contributory negligence. We will affirm.
BACKGROUND
The jury heard evidence that the collision occurred on Live Oak Drive in Burnet County. It is undisputed that Weber's vehicle, while traveling in reverse, struck the Mattinglys' vehicle, which was being driven by Tristan Mattingly. The collision occurred at approximately 12:30 p.m. on a Saturday in April 2014. Weber and each of the Mattinglys testified at trial and provided accounts of how the collision occurred. According to Weber, he and his wife were driving around their new neighborhood in Granite Shoals to look at some small parks in the area around Lake LBJ. Live Oak Drive, a rural road, had no striping down the middle or on either side and was barely wide enough for two small cars to pass each other. Weber recounted that:
My wife and I had been discussing that she liked the native plants of the area. Our property has been totally cleared. It has nothing but grasses on it, so we were looking at these types of vegetation in the area. When I come up on the Live Oak location there was a plot there that had a garden that the owner had placed native plants in. I had gone by and realized that I wanted to back up. There was not a soul out on the streets that morning, or at least I didn't think. And that was my thought at the time was there's—this town is dead. There is nobody out on Saturday morning. So, accidentally and without thinking, I looked in my side mirror, I didn't see anything, so I started backing up.The view through the back window of Weber's Chevrolet Traverse sport utility vehicle was blocked by boxes stacked in the back of the vehicle. Although the vehicle was equipped with a back up camera, Weber had not had the car very long and was unaccustomed to using the camera feature. Instead he checked his side view mirrors, which he testified would reflect anything more than 60 feet behind him. Weber testified that he did not see any vehicle behind him and, two to three seconds after stopping, he backed up at the speed "you would probably generally do backing out of a driveway." Weber stated that he backed up one to two car lengths at a speed of no more than five miles per hour. He felt an impact and assumed he had hit a rock, so pulled forward and got out of his vehicle. Weber testified that Connie Mattingly got out of the Mattinglys' vehicle and said to Weber "what the [expletive] are you doing?" Weber responded that he was sorry and that he had not seen the Mattinglys' vehicle. Weber testified that his vehicle had a scratch on the plastic bumper about the size of his thumb, that the hood of the Mattinglys' vehicle had been "pushed back towards the vehicle," and that it looked like his bumper hit the Mattinglys' car just above the headlights and pushed the hood back without damaging the headlights. Weber stated that he was not injured by the impact.
Weber's wife also testified that Weber did not travel very far in reverse before the impact and that she did not know at first what Weber had hit.
In his testimony, Tristan Mattingly described the collision as follows:
I was just driving down the road and I saw a vehicle in front of me apply his brakes and it looked like he had come to a stop and I stopped. I started slowing down and realized that he was stopped and I did—I saw his [reverse] lights come on and I turned and saw that there was a driveway on my left and I thought he was going to back into it. And so there was more than enough space, roughly 60 feet between the front end of our vehicle and the back end of his, and I saw him start coming in reverse, but quickly, and my mom leaned forward and told me to back up and I looked down and put it in reverse and he hit us by the time I—from looking at his vehicle to going down to try to grab the shifter, he hit us.Tristan testified that he was stopped three to four car lengths behind Weber's vehicle and that Weber backed up for four seconds at a speed of approximately 20 to 30 miles per hour. Tristan stated that he did not honk his horn and that the impact "pushed [him] forward real hard and the seat belt caught [him] and slung [his] head forward real hard." Tristan attributed a herniated disc in his back to the severity of the impact from Weber's car backing into his vehicle.
The cause of the herniated disc was disputed by the parties. The defense took the position that the injury to Tristan's back resulted either from Tristan's performing a dead lift of 235 pounds before the collision or his having, several months after the collision, jumped from a two story concrete structure into Lake Marble Falls, after which his father took him to an urgent care clinic for treatment.
Officer John Ortis, a patrol supervisor with the Granite Shoals Police Department testified that he was called to the scene immediately after the collision. He recounted that:
It's a two vehicle road. Unit A—or Unit 1, I apologize, had backed into Unit 2. The driver of Unit 1 stated that he had stopped to look at a deer. He was a very large male deer and he stopped, put it in reverse to back up to look at the deer, which is very common in Granite Shoals, and backed up and struck Unit 2.Officer Ortis also testified that "it's a common instance to have people stop and look at deer." Although Weber's testimony at trial was that he had backed up to look at a plant and that he did not know where the deer story originated, defense counsel argued, and Connie Mattingly agreed, that it made no difference whether Weber was backing up to see a deer or a plant.
Officer Ortis clarified that he meant it was common to see deer in the area, not that it was common for people to collide with vehicles behind them when backing up to look at deer.
Both parties testified that the collision caused little damage to Weber's sport utility vehicle and that the bumper of Weber's larger vehicle caused damage to the hood of the Mattinglys' Chevrolet Cobalt. Although the Cobalt was driveable after the accident, John Mattingly testified that parts for that vehicle at that time were expensive, the cost of repair was close to the value of the vehicle, and, consequently, the vehicle was "totaled."
At the conclusion of the trial, the trial court submitted an issue inquiring as to whether the negligence, if any, of Weber or Tristan Mattingly had been a proximate cause of the occurrence. The jury found that neither Weber's nor Tristan Mattingly's negligence had been a proximate cause of the occurrence and did not reach the remaining issues. The trial court rendered judgment on the jury's verdict and ordered that the Mattinglys take nothing. The Mattinglys filed a motion for new trial, which the trial court overruled. This appeal followed.
The jury also found that Swisher International's training or supervision of Weber, its employee, if negligent, did not proximately cause the occurrence. The Mattinglys do not challenge this finding.
DISCUSSION
In their first issue, the Mattinglys assert that the trial court erred in refusing to grant their motion for new trial because the jury's failure to find that Weber was negligent was against the great weight and preponderance of the evidence—a factual-sufficiency challenge. In a factual-sufficiency challenge, 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 it had the burden of proof must demonstrate that the jury's answer is against the great weight and preponderance of the evidence. Dow Chem. Co v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). 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 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).
Question No. 1 of the charge asked: "Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer'Yes'or 'No'for each of the following: (a) Terry Ray Weber (b) Tristan Mattingly." The jury charge included the following definitions:
"Negligence" means failure to use ordinary care, that is, failing to do that which a person or Business Entity of ordinary prudence would have done under the same or similar circumstances or doing that which a person or Business Entity would not have done under the same or similar circumstances.The jury answered "No" as to both Weber and Tristan Mattingly.
"Ordinary Care" means that degree of care that would be used of a person or Business Entity of ordinary prudence under the same or similar circumstances.
"Proximate Cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
The question submitted to the jury was a broad-form negligence question. Thus, the jury believed either that Weber was not negligent or that Weber's negligence was not a proximate cause of the collision. The Mattinglys contend that the jury's finding that Weber was not negligent is against the great weight and preponderance of the evidence. There was evidence at trial that the view through the back window of Weber's sport utility vehicle was obscured by stacked boxes. According to the Mattinglys, the evidence demonstrated that Weber backed up "blindly" because Weber testified that "he could not see everything behind him when he was backing up." The Mattinglys further point to Weber's testimony that he could have pulled into a driveway and turned around to go back to see the plant or the deer or that he could have tried to "go around the block." The Mattinglys argue that ordinary prudent individuals do not "drive in reverse on a roadway in the wrong direction without a sufficient rear view, absent some emergency."
By contrast, Weber testified that he had checked his sideview mirrors before he backed up and that he "was not blind" when he backed up. Weber identified other instances in which people drive vehicles with an obstructed rear view such as pickup trucks pulling boats or trailers. The jury also heard from Officer Ortis that what Weber did was "common" in the area. Weber also contradicted Tristan Mattingly's testimony that he backed up in reverse at a speed of 20 to 30 miles per hour, instead describing backing his vehicle slowly and for a very short distance before colliding with the Mattinglys' vehicle. It was undisputed that the area was rural, that it was a Saturday, and that Weber had seen no other vehicles driving in the area that day and did not know that the Mattinglys were behind him.
It was the jury's province to assess the credibility of each witness and resolve inconsistencies in their testimony in deciding whether the Mattinglys met their burden of demonstrating that Weber failed to use the degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. See McDonald v. Dankworth, 212 S.W.3d 336, 345-46 (Tex. App.—Austin 2006, no pet.). The jury could reasonably have believed that Weber stopped his vehicle, checked his sideview mirrors and, seeing nothing and believing nothing was behind him and having observed no other cars in the area, backed up a short distance at a slow speed and accidently struck the Mattinglys' vehicle. On this record, we cannot say that the jury's failure to find that Weber's action constituted negligence as defined in the charge was so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 601 (Tex. 2010) (noting that evidentiary sufficiency must be measured against jury charge). We overrule the Mattinglys' first issue.
In their second issue, the Mattinglys assert that the trial court erred by denying their motion for directed verdict as to contributory negligence on the part of Tristan Mattingly because there was no evidence to support submission of that issue. The Mattinglys argue that the denial of their motion for directed verdict was reversible error because it resulted in the inclusion of a jury question regarding Tristan Mattingly's negligence.
When the answer to a jury question cannot alter the effect of the verdict, the reviewing court considers that question immaterial. See Thota v. Young, 366 S.W.3d 678, 694 (Tex. 2012). As noted by the court in Thota, the Texas Supreme Court has held that even if it were error for a trial court to submit a question as to a deceased plaintiff's negligence, that question was immaterial because of the jury's finding of "No" as to the defendant's liability for negligence. Id. (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995)). As in Alvarado, any error in submitting the question of Tristan Mattingly's contributory negligence to the jury was rendered immaterial by the jury's finding of no negligence as to Weber. Once the jury exonerated Weber by answering "No" to the question of whether any negligence on his part proximately caused the collision, neither a "Yes" nor a "No" answer as to Tristan Mattingly's contributory negligence could alter the verdict. Moreover, even if submission of the question was error, any such error was harmless because the jury did not find that Tristan Mattingly's negligence was a proximate cause of the collision.
The Mattinglys argue on appeal that including a jury question regarding Tristan Mattingly's negligence was harmful because it constituted an impermissible comment on the weight of the evidence. As an initial matter, the Mattinglys did not make this objection to the charge to the trial court and, consequently, it has been waived. See Tex. R. Civ. P. 272 (objections not presented to court shall be considered as waived), 274 (party objecting to charge must point out distinctly objectionable matter and grounds of objection and any complaint is waived unless specifically included in objections). Moreover, we find the Mattinglys' argument unpersuasive. If inclusion of a question regarding negligence constitutes a comment on the evidence, then that comment was directed equally at Weber and Swisher International by the submission of negligence questions as to them as well. The authorities the Mattinglys rely on are inapposite and do not support their argument. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009) (addressing whether trial court's refusal to submit jury instruction was abuse of discretion); Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480 (Tex. 1996) (considering whether failure to include sole proximate cause instruction in charge constituted reversible error); Southwestern Bell Tel. Co. v. John Carlo Texas, Inc., 843 S.W.2d 470 (Tex. 1992) (holding that trial court's refusal to define "justification" for jury constituted reversible error when entire factual dispute between parties was whether conduct was justified); American Bankers Ins. Co. of Fla. v. Caruth, 786 S.W.2d 427 (Tex. App.—Dallas 1990, no writ) (impermissible comment on weight of evidence when, after examining entire charge, it is determined that judge assumed truth of material controverted fact or exaggerated, minimized, or withdrew some pertinent evidence from jury's consideration). We overrule the Mattinglys' second issue.
In their brief the Mattinglys state that inclusion of the issue "suggested to the jury the Court's opinion that the defendants were not negligent or not entirely at fault and was likely the reason for the improper verdict of no negligence as to all parties."
CONCLUSION
Having overruled the Mattinglys' two appellate issues, we affirm the trial court's judgment.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: January 11, 2018