Affirmed and Memorandum Opinion filed June 18, 2009

Affirmed and Memorandum Opinion filed June 18, 2009.

In The

Fourteenth Court of Appeals

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NO.  14-07-00850-CV

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JED GASKEY, INDIVIDUALLY AS AND NEXT FRIEND OF CASSANDRA GASKEY, AND CASSANDRA GASKEY, Appellants

V.

ONE SOURCE SECURITY AND FOUND, a/k/a ONE SOURCE SECURITY AND SOUND, AND STEVEN GREEN SMITH, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No.  2004-60994

M E M O R A N D U M   O P I N I O N

Appellant Jed Gaskey, individually and as next friend of his daughter Cassandra Gaskey, appeals from the trial court=s denial of his motion for new trial after a jury=s verdict against him.  Gaskey contends that the trial court erred in denying him a new trial because (1) the jury=s verdict was against the great weight of the evidence, and (2) the evidence supporting the jury=s verdict was legally insufficient.  We affirm.

Facts

On October 30, 2002, Cassandra Gaskey, a fourteen-year-old student at Tomball Junior High School, was riding home from school on a bus operated by the Tomball Independent School District.  As the school bus stopped at an intersection, a Ford F-150 pickup struck it from the rear.  Appellee Steven Green Smith was driving the truck, which was owned by appellee One Source Security and Sound (AOne Source@).^[1] After the collision, Cassandra was taken to an area hospital, treated, and released to her father.   Later she saw a series of doctors concerning neck pain and other health problems she claims resulted from the collision.

In October 2004, Jed sued One Source, its owner C.T. Ashby, and Smith, seeking compensation for Cassandra=s injuries resulting from the collision.  His claims included allegations of both negligence and gross negligence against Smith, and negligent entrustment against One Source and Ashby.  In August 2006, Jed added the school district as a defendant, alleging that it had negligently entrusted its bus to driver Elaine Overturff.  In September 2006, Jed non-suited Ashby. 

The case was tried to a jury in June 2007.  During the trial, Jed agreed to non-suit Smith in return for One Source=s stipulation that he was acting in the course and scope of his employment at the time of the collision.  The jury returned a verdict in favor of the appellees and Tomball I.S.D.  Jed filed a motion for new trial.  The trial court denied Jed=s motion, and this appeal followed.

Analysis

Jed Gaskey contends that the trial court erred in denying him a new trial because (1) the jury=s verdict was against the great weight of the evidence, and (2) the jury=s verdict was supported by legally insufficient evidence. 

To prove negligence, a plaintiff must establish a duty, a breach of that duty, and damages proximately caused by the breach.  Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).  Proof that the defendant=s vehicle rear-ended the plaintiff=s vehicle does not establish negligence as a matter of law.  Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.CHouston [14th Dist.] 1989, writ denied); Till v.  Thomas, 10 S.W.3d 730, 733 (Tex. App.CHouston [1st Dist.] 1999, no pet.).  The plaintiff still must prove both specific acts of negligence on the part of the defendant and that the negligence proximately caused the plaintiff=s damages.  Cent. Freight Lines, 774 S.W.2d at 412; Till, 10 S.W.3d at 733.

The jury charge in this case contained the following question:

Did the negligence, if any, of the persons named below proximately cause the injury in question?

Answer AYes@ or ANo@ for each of the following:

Steven Smith          ________

Elaine Overturff      ________

The jury answered ANo@ for both Smith and Overturff.  Jed insists that the evidence requires a negligence finding against at least one of the two drivers. 

A.      Legal Sufficiency

The test for legal sufficiency is whether the evidence at trial Awould enable reasonable and fair‑minded people to reach the verdict under review.@ City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); 7979 Airport Garage, L.L.C. v.  Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 499 (Tex.  App.CHouston [14th Dist.] 2007, pet. denied).  In making this determination, we must view the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable fact‑finder could and disregarding any contrary evidence unless a reasonable fact‑finder could not.  City of Keller, 168 S.W.3d at  827. We assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences.  Id. at 821.  We cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement.  See id. at 822.  We will sustain a legal-sufficiency challenge only when (1) the record discloses the complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Id. at 810.

Jed=s legal-sufficiency challenge rests on his contention that Athe evidence conclusively proves, as a matter of law, that Smith was negligent to some degree.@  Specifically, Jed states that several statements Smith made during his trial testimony qualify as judicial admissions, compelling a jury finding that Smith was negligent as a matter of law.  A judicial admission is a formal waiver of proof that usually arises in the pleadings or a stipulation of the parties. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).  Such an admission is conclusive upon the party making it, relieves the opposing party=s burden of proving the admitted fact, and bars the admitting party from disputing it.  Id.   

Similarly, a party=s testimonial declarations which are contrary to his position are quasi‑admissions.  Id. They are merely some evidence, and they are not conclusive upon the admitter.  Id. The trier of fact determines the weight to be given such admissions.  Id. But as a matter of public policy, a party=s testimonial quasi‑admission will serve as a judicial admission if it appears that: (1) the declaration was made during the course of a judicial proceeding; (2) the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony; (3) the statement is deliberate, clear, and unequivocal; (4) the giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and (5) the statement is not also destructive of the opposing party=s theory of recovery.  Id.  The public policy underlying this rule is that it would be unjust to permit a party to prevail at trial after contradicting his theory of recovery or defense by clear, unequivocal testimony.  Id. 

Jed contends that Smith=s trial testimony contained judicial admissions that: (1) he could have prevented the accident; (2) he was partly at fault; and (3) he hit the bus because he was following it too closely.  During his testimony, Smith agreed with Jed=s trial counsel that the accident Acould have been avoided if [he had been] traveling slower and farther back from the bus.@  He also testified, AI was traveling a little too close, I guess,@ and AI think it was probably joint at fault.@  These statements appear to contradict Smith=s defense that he was not negligent.  But Smith also testified repeatedly that he was not speeding or in a hurry, and that he wasn=t Atailgating the bus.@  Instead, Smith maintained that he had been traveling at about Athree car-lengths@ behind the bus. He also testified that the bus stopped suddenly and unexpectedly.  When we look, as we should, at the context and totality of the statements Jed labels as judicial admissions, we cannot say that they were deliberate, clear, and unequivocally contrary to his defense.^[2] See id.

As Jed is attacking the legal sufficiency of an adverse finding on an issue for which he had the burden of proof, he must demonstrate on appeal that the evidence conclusively establishes all vital facts in support of the issue.  Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); French v. Moore, 169 S.W.3d 1, 15 (Tex. App.CHouston [1^st Dist.] 2004, no pet.).  Because he has not established that Smith=s testimony included judicial admissions, his legal-sufficiency argument fails.  We overrule the first issue.

B.  Factual Sufficiency

In his second issue, Jed contends the trial court erred by overruling his motion for new trial because the verdict was against the great weight of the evidence.  When considering a factual-sufficiency challenge to a jury=s verdict, we must review and weigh all the evidence, not just the evidence that supports the verdict.  Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998); 7979 Airport Garage, L.L.C., 245 S.W.3d at 499.  After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See Mar. Overseas Corp., 971 S.W.2d at 407; 7979 Airport Garage, L.L.C., 245 S.W.3d at 499.  We may not simply substitute our judgment for that of the jury; the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony.  Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Praise Tabernacle Outreach & Family Worship Ctr. v. Restoration Fin. Group, Inc., No. 14‑06‑01055‑CV, 2008 WL 2884601, at *9 (Tex. App.CHouston [14th Dist.] July 29, 2008, no pet.) (mem. op.).

Jed asserts that it is undisputed that Smith was operating his truck behind the school bus on a clear day, and that, at some point, Smith=s truck struck the bus from behind.  It necessarily follows, Jed contends, that either the bus driver was negligent in stopping too suddenly, or that Smith was negligent in failing to stop before colliding with the rear of the bus.  The option that Jed excludes is that the jury may have simply believed he failed to prove by a preponderance of the evidence that either driver was negligent.  See Klein v. Brown-Griffin Texaco Distribs., Inc., 562 S.W.2d 910, 911 (Tex. Civ. App.CAmarillo 1978, writ ref=d n.r.e.) (stating that in a rear-end collision, A[i]t was uniquely within the jury=s province to determine whether plaintiff succeeded in proving negligence by a preponderance of the evidence@).  The mere occurrence of a rear-end accident does not establish negligence as a matter of law.  Id. at 912; Cent. Freight Lines, 774 S.W.2d at 412.  And it is neither impossible nor automatically invalid for a jury to determine that neither driver in a rear-end accident committed negligence.  See, e.g., Ordonez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 271 (Tex. App.CHouston [1st Dist.] 1998, no pet.); Cent. Freight Lines, 774 S.W.2d at 414; Page v. Pete Singh Produce, Inc., 624 S.W.2d 674, 675 (Tex. App.CEl Paso 1981, writ ref=d n.r.e.); Klein, 562 S.W.2d at 911B13.

Smith testified that before the collision, he was traveling about three car-lengths behind the bus at about 35 miles per hour, well below the posted limit of 50.  He believed he had left enough space between himself and the bus, and did not feel that he was tailgating it.  Overturff, the bus driver, testified that Smith was about three seconds behind her.  Smith testified that when the light at the intersection turned yellow, he believed the bus was going to go through it, but instead it came to a sudden and unexpected stop.  Smith also testified that he thought he and Overturff were Ajoint[ly] at fault,@ that he was following Aa little too close,@ and that he could have avoided the accident had he not been following so closely.

Jed offered evidence that the investigating officer found the cause of the accident to be Smith=s failure to control his speed, that Smith=s tires left skid marks but the bus=s did not, that the bus stopped before entering the intersection and that the vehicle traveling behind Smith=s truck did not rear-end it when Smith stopped. 

Smith impeached Cassandra at trial with her deposition testimony that Overturff had tried to run a red light, but thought better of it and stopped quickly.  Smith also pointed out to the jury that Cassandra told Dr. Stephen Esses, her treating physician:  Athe bus driver tried to run a red light, and I was pushed forward in my seat.@  She did not mention Smith rear-ending the bus to Dr. Esses.

Central Freight Lines is particularly instructive in evaluating Jed=s factual-sufficiency argument.  In that case, also arising from a rear-end collision, the plaintiff claimedCjust as Jed does in this caseCthat the rear-ending vehicle Awas following too closely.@  774 S.W.2d at 412.  And the defendant in Central Freight Lines, just like Smith does in this case, contended that the rear-ended vehicle had stopped suddenly.  Id. at 413.  But there was conflicting evidence in Central Freight Lines, just as there is this case, on these issues and others.  Id. at 414.  In the face of such conflicting evidence, the court in Central Freight Lines determined that it must defer to the jury, Athe sole judge of the credibility of the witnesses and the weight to be given their testimony.@  Id. at 414. 

Jed points us to four cases in which the court of appeals determined that a jury=s failure to find the defendant negligent in an automobile collision was against the great weight of the evidence.^[3] Chumley v. Barhorst, No. 01-03-01342-CV, 2005 WL 856887 (Tex. App.CHouston [1st Dist.] Apr. 14, 2005, no pet.) (mem. op.); Hardy v. Bianchi, No. 09-00-121-CV, 2000 WL 1677943 (Tex. App.CBeaumont Nov. 9, 2000, no pet.) (per curiam) (not designated for publication); Moore v. State Farm Mut.  Auto. Ins. Co., 792 S.W.2d 818 (Tex. App.CHouston [1st Dist.] 1990, no writ); Priest v. Myers, 598 S.W.2d 359 (Tex. Civ. App.CHouston [14th Dist.] 1980, no writ).  But in none of these cases was there any allegation that the accident was caused by anything other than a single defendant=s negligence.  The juries in these cases did not face what the juries in Central Freight Lines and this case facedCconflicting evidence about whether the accident was caused by one driver as opposed to the other.  When so faced, nothing prohibits a jury from deciding that the plaintiff had failed to prove by a preponderance of the evidence that either driver was negligent.  See Klein, 562 S.W.2d at 911.

Because we may not substitute our own judgment for that of the trier of fact, even if a different answer could be reached on the evidence, Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex. App.CHouston [14th Dist.] 2000, pet. denied), we do the same in this case as the court did in Central Freight Lines.  AAfter reviewing the evidence in accordance with the standards previously set forth,@ we find it factually sufficient to support the jury=s findings.  Cent. Freight Lines, 774 S.W.2d at 415.

We cannot say, having considered and weighed the complete record in this case, that the jury=s verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See Mar. Overseas Corp., 971 S.W.2d at 407; 7979 Airport Garage, L.L.C., 245 S.W.3d at 499.  The trial court did not err in denying Jed=s motion for new trial.  We overrule Jed=s second issue, and affirm the judgment.

/s/      Jeff Brown

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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^[1]  Smith=s employer is referred to as AOne Source Security and Found@ in the case style of the Gaskeys= amended petition, the trial court=s final judgment, the Gaskeys= motion for new trial, and in both parties= briefs on appeal.  But the same party is referred to as AOne Source Security and Sound@ in the case style on the notice of appeal, and in the AIdentification of Parties and Counsel@ in the appellees= brief.  We interpret this distinction as merely a typographical error that was uncorrected throughout most of the record, until the notice of appeal.

^[2]  In pressing this issue, Jed relies on Phillips v. Bramlett, 258 S.W.3d 158 (Tex. App.CAmarillo 2007), rev=d on other grounds, 52 Tex. Sup. Ct. J. 422, 2009 WL 567889 (Tex. Mar. 6, 2009).  In Phillips, the court highlighted the fact that because the defendant-witness made the same admission twice, there was no chance that it was just an inadvertent slip of the tongue.  Id. at 168. But in this case, instead of reconfirming the alleged admissions, Smith contradicted some and qualified others. 

^[3]  We have reviewed each of the cases the parties have cited to us in spite of the perhaps wise advice of then Chief Justice Tunks of this court that A[i]n automobile collision cases a review of other opinions usually is of little help in determining the issues of liability@ because A[t]he facts of each case are different from those of any other case.@  Jordan v. Walker, 448 S.W.2d 837, 842 (Tex. Civ. App.CHouston [14th Dist.] 1969, writ ref=d n.r.e.).