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Opinion issued June 12, 2008


In The

Court of Appeals

For The

First District of Texas




NO. 01-07-00222-CV











On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2003-06574





          This is an appeal of a take-nothing judgment, entered on a jury verdict in an automobile collision case. Autumn M. Canales argues that the trial court erred by entering the judgment, because the evidence is factually insufficient to support the jury’s verdict. We affirm.



          This case arises from an automobile collision between Canales and Kevin H. Womack. Directly before the accident, Womack was stopped in a gas station driveway and intended to turn into the left-hand lane by crossing both right-hand lanes. An 18-wheeler was parked on the street to the left of the driveway and obstructed Womack’s view of oncoming right lane traffic. Womack began driving across the right-hand lanes, but collided with Canales’s car when he reached the second right-hand lane.

          Canales sued Womack. At the conclusion of trial, the jury was asked, “Did the negligence, if any, of Kevin H. Womack proximately cause the occurrence in question?” Ten of the 12 jurors responded “no.” Based on the jury’s verdict, the trial court entered a take-nothing judgment for Womack. Canales now appeals.

Factual Sufficiency

          In her sole issue, Canales argues that the trial court erred by entering a take-nothing judgment for Womack because the evidence is factually insufficient to support the jury’s verdict.

Standard of Review

          In determining the factual sufficiency of the evidence to support a jury’s finding, courts of appeals are to weigh all the evidence, both for and against the finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing a factual sufficiency challenge to a finding where the burden of proof is on the complaining party, that party must show that the adverse finding is against the great weight and preponderance of the evidence. Id. In conducting our review, we may not substitute our judgment for that of the jury, which is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

          Canales asserts that the evidence presented at trial clearly establishes that Womack failed to exercise reasonable care. She argues that Womack’s own testimony unequivocally establishes his negligence.

          At trial, Womack admitted that Canales had the right of way, he hit Canales’s car in her lane of traffic, he was not critical of Canales for anything she failed to do, and he was responsible for the accident. He testified that the 18-wheeler was blocking his view to the left and that it would have been reasonable for him to enter the left-hand lane by turning right and then making a U-turn, but that he did not do so because it is “faster and easier” to drive across both right-hand lanes. Furthermore, Canales points out that Womack apologized to her after the accident and explained that his foot had slipped off the brake and onto the accelerator. Rather than deny making such a statement, Womack merely testified that he does not recall apologizing and, because he cannot remember, he will defer to her. Nevertheless, he disputed Canales’s contention that his foot slipped off the brake and onto the accelerator and testified that he inched his way forward by letting his foot off the brake and not pressing the accelerator.

          While it is undisputed that Womack testified that he failed to yield the right-of-way and was responsible for causing the accident, a driver’s failure to yield the right-of-way does not give rise to negligence as a matter of law. See, e.g., Middleton v. Palmer, 601 S.W.2d 759, 765 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.). Instead, where there is evidence that the driver exercised some care, the jury determines whether a reasonably prudent driver would have acted in the same way:

Section 545.256 of the transportation code Footnote requires the operator of a motor vehicle emerging from an alley, driveway, or building in a business district to, on entering the roadway, yield the right-of-way to an approaching vehicle. However, when the driver exercises some degree of care, it becomes an issue of fact as to whether the driver’s conduct was negligent.

County of Dallas v. Poston, 104 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.) (citation omitted).

          Here, Womack testified that, because the 18-wheeler blocked his view of oncoming traffic, he inched his way forward in order to see around the 18-wheeler and avoid an accident, and did not see Canales until their cars collided. He also introduced photographs showing minimal damage to both vehicles in support of his contention that he had inched his way into the street and that the impact was slight. In a case involving almost identical facts, we held that the jury’s finding that appellee was not negligent was not against the great weight and preponderance of the evidence:

The jury may have believed appellee’s version of events: that appellee stopped and looked for on-coming vehicles before he entered the street from the parking lot; that parked cars on the street blocked appellee’s view of appellant’s vehicle; that appellee proceeded at a slow rate of speed; that appellee did not see appellant’s vehicle until the moment of impact, when appellant’s vehicle ran into appellee’s driver’s side.

McKinley v. Chang, No. 01-93-01150-CV, 1994 WL 362716, at *3 (Tex. App.—Houston [1st Dist.] July 14, 1994, writ denied) (not designated for publication). Similarly, the jury could have believed Womack’s testimony and found that he drove in a reasonable manner. Footnote

          In light of all the evidence, Canales has not shown that the jury’s verdict is against the great weight and preponderance of the evidence. See Dow Chem., 46 S.W.3d at 242. Accordingly, we hold that the trial court did not err in entering a take-nothing judgment for Womack on the jury’s verdict.

          We overrule Canales sole issue.


          We affirm the judgment of the trial court.


                                                                        George C. Hanks, Jr.


Panel consists of Justices Nuchia, Hanks, and Bland.