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Womack Wholesale Supply3/29/2001
er of proof that Bradley would have testified that he knew Gordwin; that he had seen Gordwin drive into and out of Womack's property on many occasions; and that "Gordwin regularly drove his truck at a fast rate of speed in and out of the property getting fuel."
Gordwin's objection was that Bradley's proffered evidence was an impermissible attempt to use evidence of Gordwin's habit or custom to establish negligence. However, Rule 406 of the Texas Rules of Evidence specifically allows evidence of habit to prove conformity with that habit on a particular occasion:
Evidence of the habit of a person or of the routine, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Id.
Bradley's proffered testimony was therefore relevant to show that Gordwin was speeding at the time of his accident, and was excludable only if it was "unduly prejudicial or needlessly cumulative." TEX. R. EVID. 403. The trial court's stated reason for disallowing the habit testimony was that there had already been "plenty of testimony" as to how fast Gordwin was driving.
Although Peterson testified that Gordwin was traveling at 25 m.p.h. just before the accident, his deposition testimony was contradictory as to whether he actually saw Gordwin's truck or could assess its speed when it hit the manhole. Because Peterson's testimony was equivocal, it was not "plenty of testimony" as to whether Gordwin was speeding. Bradley's proffered testimony of Gordwin's speeding habit would have reinforced Peterson's speeding testimony without being "unduly prejudicial or needlessly cumulative." We hold the trial court erred in excluding the proffered habit testimony.
However, Womack has not shown that the error probably caused the rendition of an improper judgment. There was no evidence that the truck's speed caused the manhole covers to collapse under the truck's weight, or that the collapse would not have occurred at a slower speed. Other than Ellisor's speculation that Gordwin's speed must have caused a bigger "jolt" than if he had driven more slowly, there was no evidence that the truck's speed affected the severity of Gordwin's injuries. Under these facts, Womack has not shown that the rendition of an improper judgment probably resulted from the trial court's error in excluding Bradley's testimony of Gordwin's habit or custom of speeding into the parking lot. See TEX. R. APP. P. 44.1.
We overrule point of error five.
We affirm the trial court's judgment.
Do not publish.
Tex. R. App. P. 47.
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