Opinion issued May 17,=20 2007=20
Appellants,=20
Jose Ortiz, Mario Ortiz, Leonardo Ortiz, Juan Garcia, and Ramon =
Hernandez=20
Salas, We=20
affirm. At trial,=20
Jose Ortiz, with the assistance of a Spanish translator, testified =
that he=20
was driving his truck southbound on the North Freeway, with Mario =
Ortiz in=20
the front passenger seat and Juan Garcia and Ramon Salas in the =
backseat,=20
when his truck was struck from behind by a car driven by Martinez. =
Jose=20
Ortiz was driving approximately thirty or forty miles per hour in =
the=20
right lane closest to the shoulder. When he saw an accident up =
ahead in=20
his lane, he applied his brakes, causing his truck to come to a =
stop "with=20
sufficient time." Although appellants' truck came to a stop, cars =
in the=20
two left lanes continued moving. Jose Ortiz did not notice =
Martinez's car=20
until after the collision with Martinez. Jose Ortiz further =
testified that=20
he suffered physical injuries as a result of the collision. =
Martinez=20
testified that the collision occurred at approximately 6:30 a.m. =
"on the=20
on-ramp, or shortly after the on-ramp, between Patton and Main =
Street" of=20
Interstate 45. Traffic "was pretty heavy." Martinez described the =
entrance=20
ramp to the freeway as having a "downhill slope" to enter into the =
flowing=20
lane of traffic. He explained that the entrance ramp is "probably =
one of=20
the shortest on-ramps here in Houston" and "[y]ou either get into =
traffic=20
or you get pushed into the side of the wall." The entrance ramp =
requires a=20
driver to look back to check for merging traffic and to "make sure =
nobody's going to cut over." After the traffic light to the =
entrance ramp=20
had turned green, the cars in front of Martinez moved forward, but =
because=20
there was too much traffic in the lane to actually enter the =
freeway, the=20
cars "just kept inching forward." As he entered the freeway, =
Martinez,=20
driving a Toyota Corolla, was behind appellants' truck and "parked =
behind=20
it." He looked to his left and saw that there was an opening in =
the=20
freeway. Appellants' truck had already moved forward and was =
moving into=20
traffic, so Martinez began to accelerate. When he looked forward, =
all he=20
saw were brake lights from the truck. Martinez slammed on his =
brakes and=20
turned the steering wheel thinking there was enough room to stop, =
but his=20
car struck appellants' truck from behind, causing his air bag to =
deploy.=20
The windshield of Martinez's car "was damaged from when the air =
bag went=20
off," which caused his hand to be thrown up against it. His seats =
would=20
not move and he could not drive the car. Also, the front left =
quarter=20
panel of the car and its radiator were damaged from going =
underneath=20
appellants' truck. Martinez exited his car through the =
driver's-side=20
window. Martinez=20
explained that he had used the entrance ramp to gain access to =
Interstate=20
45 on a regular basis, but he now prefers not to use it because of =
the=20
collision. "[A] lot of accidents" occur near the area, in part due =
to the=20
short nature of the entrance ramp. Although he thought it =
necessary for=20
Jose Ortiz to have stopped the truck, Martinez had kept a proper =
lookout=20
prior to the collision. Moreover, Martinez did not think that the=20
collision was "unavoidable," and, when questioned as to whether he =
felt=20
that he was responsible for the collision, he answered, "Well, I =
would say=20
yeah, because I did hit him." Martinez=20
further testified that, prior to the collision, he looked over his =
left=20
shoulder for only one or two seconds, "watching a car behind [him] =
and=20
oncoming traffic to make sure there was . . . enough time and =
space to get=20
in." Prior to looking over his shoulder, the truck driven by Jose =
Ortiz=20
was "proceeding on the freeway," and Martinez did not see its =
brake=20
lights. Martinez, who was attempting to enter the lane of traffic, =
was=20
unable to see what was happening in the lane ahead of the truck. =
Martinez=20
explained that he drove his car in a prudent manner, considering =
the=20
traffic conditions that morning, and he was merely accelerating to =
match=20
the speed of the traffic. In their=20
first issue, appellants argue that the trial court erred in =
including a=20
sudden emergency instruction in the jury charge because Martinez's =
"own=20
negligent act caused the condition." However, a=20
party objecting to a charge must point out distinctly the =
objectionable=20
matter and the grounds of the objection. Tex. R. Civ. P. 274. Any=20
complaint as to a question, definition, or instruction, on account =
of any=20
defect, omission, or fault in pleading, is waived unless =
specifically=20
included in the objections. Id. On appeal, the reviewing =
court=20
must examine the pleadings, the evidence presented, and the jury =
charge;=20
any error regarding a requested instruction will not be deemed =
reversible=20
unless it was reasonably calculated to cause and probably did =
cause=20
rendition of an improper judgment. Jordan v. Sava, Inc., =
No.=20
01-03-00554-CV, 2007 WL 1119931, at *5 (Tex. App.--Houston [1st =
Dist.]=20
April 12, 2007, no pet. h.); see also Tex. R. App. P.=20
44.1(a)(1). Here, the=20
reporter's record consists solely of the testimony of four of the =
five=20
appellants, Jose Ortiz, Mario Ortiz, Juan Garcia, and Ramon Salas=20
Hernandez, and that of appellee, John Martinez. In their=20
second and third issues, appellants argue that the evidence is =
legally and=20
factually insufficient to support the jury's negative answer to =
question=20
one, "Did the negligence, if any, of [John Martinez] proximately =
cause the=20
injury in question?" Appellants assert that "[t]he evidence =
established=20
that prior to the impact with [appellants'] vehicle, [Martinez] =
was aware=20
of the heavy traffic conditions on this date, that he was =
attempting to=20
merge into the heavy traffic, that he was looking back and did not =
maintain a proper lookout and distance from [appellants'] vehicle =
which he=20
knew was directly in front of him[,] and . . . that [appellants] =
did=20
nothing to cause the accident." Because=20
appellants attack the legal and factual sufficiency of an adverse =
jury=20
finding on which they had the burden of proof, they must =
demonstrate on=20
appeal that the evidence either conclusively establishes, as a =
matter of=20
law, all facts in support of the issue (for rendition), or, =
alternatively,=20
that the jury's adverse finding is against the great weight and=20
preponderance of the evidence (for remand). Jordan, 2007 =
WL=20
1119931, at *11; see also Sterner v. Marathon Oil Co., =
767 S.W.2d=20
686, 690 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 =
(Tex.=20
1986). The mere=20
occurrence of a rear-end collision does not present evidence of =
negligence=20
as a matter of law. Weaver v. U.S. Testing Co., Inc., 886 =
S.W.2d=20
488, 490 (Tex. App.--Houston [1st Dist.] 1994, writ denied), =
overruled=20
on other grounds by State Farm Fire & Cas. Co. v. Morua, =
979=20
S.W.2d 616, 619 (Tex. 1998). The question of whether an automobile =
being=20
struck from the rear raises an issue of negligence or establishes =
it as a=20
matter of law depends on all the facts and circumstances of the =
particular=20
case. DeLeon v. Pickens, 933 S.W.2d 286, 289 (Tex. =
App.--Corpus=20
Christi 1996, writ denied). Here, the=20
evidence and inferences supporting the jury's finding that =
Martinez was=20
not negligent consisted of Martinez's testimony that he maintained =
a=20
proper lookout prior to the collision and was driving in a prudent =
manner,=20
considering the traffic conditions. Martinez also explained that, =
because=20
of the traffic situation, he was unable to see what was occurring =
in front=20
of appellants' truck. The jury may well have believed that =
Martinez was=20
acting reasonably in looking back over his left shoulder to see if =
he=20
could change lanes safely. Thus, the evidence does not =
conclusively=20
establish, as a matter of law, that Martinez's negligence, if any, =
proximately caused appellants' injuries. In regard=20
to the factual sufficiency of the evidence, Martinez did testify =
that he=20
frequently used the entrance ramp and was aware of the typical =
traffic=20
conditions. Jose Ortiz testified that he stopped his truck "with=20
sufficient time" prior to the collision with Martinez, and =
Martinez=20
acknowledged that he thought that it was necessary for appellants =
to stop=20
their truck in order to avoid a collision with the car in front of =
them.=20
Martinez also explained that he did not think that the collision =
was=20
"unavoidable" and felt that he was responsible for the collision. =
However,=20
as noted above, Martinez also testified that he had kept a proper =
lookout=20
and drove his car in a prudent manner, considering the traffic =
conditions=20
that morning. We cannot conclude that the jury's finding that the=20
negligence of Martinez, if any, did not proximately cause =
appellants'=20
injuries is so against the great weight and preponderance of the =
evidence=20
that it is clearly wrong and unjust. Accordingly, we hold that the =
evidence is legally and factually sufficient to support the jury's =
negative answer to question one Having held=20
that the evidence is legally and factually sufficient to support =
the=20
jury's negative answer to question one, regarding Martinez's =
liability, we=20
need not address appellants' fourth and fifth issues, concerning =
the=20
jury's zero damages findings. We affirm=20
the judgment of the trial court. Terry=20
Jennings Panel=20
consists of Justices Taft, Jennings, and Alcala.=20
2. 3.