Delores Celano, Individually and A/N/K to N.C., M.M, and C.M., Minors v. Anthony Celano and Natalio Perez Hernandez ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00887-CV

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DELORES CELANO, INDIVIDUALLY AND AS NEXT OF KIN TO

NATALIE CELANO, MAYRA MORALES, AND

CYNTHIA MORALES, MINORS, Appellant

v.

ANTHONY CELANO AND NATALIO PEREZ HERNANDEZ, Appellees

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On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 53,343-272

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O P I N I O N

Appellant, Delores Celano, individually and as next of kin to Natalie Celano, Mayra Morales, and Cynthia Morales, minors, appeals a take-nothing judgment in favor of defendants Anthony Celano and Natalio Perez Hernandez. We affirm.

BACKGROUND

On a clear, dry afternoon in November 1999, Anthony Celano (Celano) was driving his wife (appellant) and their three daughters in their van. Celano pulled out of a school driveway and made a right turn onto a one-way freeway feeder road in Bryan, Texas. A vehicle driven by Hernandez struck Celano's van at the right rear of the van, and the van spun, rolled over, and came to a stop upside down. The three minors in the van were treated for their injuries at a hospital. Appellant was not treated for any injuries on the day of the accident.

Appellant sued the driver of both vehicles for negligence. The case was tried to a jury, which found that the accident was not caused by any negligence of either Celano or Hernandez. Damages questions were not predicated on a finding of negligence. The jury found no damages for physical pain or mental anguish for any of the four passengers in the van. The jury found damages for past medical care for the three minors, but none for appellant. On appeal, appellant challenges the factual sufficiency of the evidence to support the jury's no-negligence findings and the jury's failure to find damages in her favor.

DISCUSSION

I. Standard of Review

In reviewing factual sufficiency points of error, we must examine all of the evidence in the record, including any evidence contrary to the judgment to determine whether the challenged finding is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Transmission Exch., Inc. v. Long, 821 S.W.2d 265, 271 (Tex. App.--Houston [1st Dist.] 1991, writ denied). The jury is free to believe or disbelieve the witnesses' testimony in whole or in part. Miller v. Kendall, 804 S.W.2d 933, 939 (Tex. App.--Houston [1st Dist.] 1990, no writ). The jury is entitled to disbelieve a witness even though that witness is neither impeached nor contradicted. Murphy v. Tex. Farmers Ins. Co., 982 S.W.2d 79, 85 (Tex. App.--Houston [1st Dist.] 1998), aff'd, 996 S.W.2d 873 (Tex. 1999).

The occurrence of an accident is not of itself evidence of negligence. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.--Houston [1st Dist.] 1999, no pet.). The plaintiff must prove specific acts of negligence on the part of the driver and must also prove proximate cause. Id. Whether the plaintiff meets this burden is within the province of the jury to determine. Id.

II. Negligence

Jury question number one asked: "Did the negligence, if any, of the person named below proximately cause the occurrence or injuries in question?" The jury answered "No" for both Celano and Hernandez.

A. Hernandez's Negligence

In her first point of error, appellant contends that the failure of the jury to find that Hernandez was negligent was contrary to the overwhelming weight and preponderance of the evidence.

The following is some evidence in support of the jury's verdict as it relates to Hernandez: Officer Maynard, who was the first officer at the scene of the accident, Officer Cooper, who investigated the accident cite nine days later, Celano, and Hernandez testified that there was a dip in the road that briefly obstructed visibility a short distance south of the driveway; Hernandez testified he did not see Celano's van until he came over the rise from the dip; Hernandez further testified that the van did not come to a complete stop before entering the road and he realized the van was not going to yield; Hernandez said he pulled to the left, but the van came partly into the left lane; Hernandez said he was traveling about 55 miles per hour, which was the speed limit; Hernandez's testimony was the only evidence of his speed; Mayra Morales, Celano's step-daughter, testified that the impact occurred as the van was starting to turn onto the road, indicating that Celano did not yield the right-of-way.

Evidence contrary to the verdict with regard to Hernandez is as follows: Officer Maynard testified that speed was a factor in the accident, and the accident report by Officer Maynard stated that Hernandez was traveling at a high rate of speed. However, Officer Maynard testified that he did not have the expertise to estimate how fast Hernandez was traveling at the time of the accident.

Appellant argues that her own exclamation, "Oh my God, that car is coming fast," at the time of the accident, Hernandez's failure to respond to her questions regarding his speed, testimony regarding Celano's care in stopping and looking before entering the road, and the photographs of the van after the accident are evidence of Hernandez's negligence. However, these facts are not inconsistent with the jury's verdict and are not evidence of his negligence. Hernandez admitted traveling at 55 miles per hour, which was the speed limit, and neither Celano's care nor the damage to the van establishes Hernandez's negligence.

The jury finding regarding Hernandez's negligence was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We hold that the evidence is factually sufficient to support the jury's verdict that any negligence of Hernandez was not the proximate cause of the accident. Accordingly, we overrule appellant's first point of error.

B. Celano's Negligence

In her second point of error, appellant contends that the failure of the jury to find that Celano was negligent was contrary to the overwhelming weight and preponderance of the evidence.

In addition to the testimony of Officer Maynard, Officer Cooper, Celano, and Hernandez regarding the dip in the road, Officer Maynard testified that he did not believe that Celano saw Hernandez's vehicle because of the dip; Celano testified that he stopped, looked left, then right, then left again and did not see Hernandez's vehicle and speculated that he thought he did not see Hernandez's vehicle because of the dip; Cynthia Morales, Celano's step-daughter, testified that Celano stopped and looked before proceeding onto the road. All this testimony is some evidence to support the jury's verdict as it related to Celano.

Evidence contrary to the verdict is as follows: Hernandez testified that Celano did not stop at the exit from the private drive before entering the road and that Celano drove into the left lane as he entered the road; Mayra Morales testified that the van was hit as it started to turn onto the road, indicating that Celano did not yield the right-of-way; Officer Cooper testified that Hernandez's vehicle should have been visible to Celano for 146 feet before Hernandez hit his brakes.

The jury finding regarding Celano's negligence was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We hold that the evidence is factually sufficient to support the jury's verdict that any negligence of Celano was not the proximate cause of the accident. Accordingly, we overrule appellant's second point of error.

III. Damages

In her third point of error, appellant contends that the failure of the jury to find a sum of money that would fairly and reasonably compensate her for her injuries that resulted from the accident was contrary to the overwhelming weight and preponderance of the evidence.

The jury answered the liability question in the negative, and we have held that there is evidence to support that verdict. Therefore, the jury's failure to award damages is immaterial. See Neese v. Dietz, 845 S.W.2d 311, 315 (Tex. App.--Houston [1st Dist.] 1992, writ denied). Accordingly, we overrule appellant's third point of error.

We affirm.

Sam Nuchia

Justice

Panel consists of Chief Justice Schneider and Justices Nuchia and Radack.

Do not publish. Tex. R. App. P. 47.