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Edge v. Morales11/2/1995
Appellants Gary Allen Edge and Michelle Lenee Edge appeal a takenothing judgement rendered by the trial court in favor of appellees in this automobile accident case. In two points of error, appellants (1) contend that the evidence is legally and factually insufficient to support the jury findings and (2) challenge the trial court's application of the comparative responsibility statute, Chapter 33 of the Civil Practice and Remedies Code. We affirm.
FACTS
On May 15, 1992, appellant, Gary Allen Edge, and appellee, Fernando Avendano Morales, were involved in an automobile accident at the intersection of Chenevert and McGowen in Houston. It is uncontested that appellee's vehicle ran a stop sign and collided with appellant's vehicle. Nothing blocked the view of either driver, and there was no evidence that the appellant made any effort to avoid the collision. Appellant sustained a lower back injury, initially diagnosed by Dr. Anthony Walter as acute cervical and lumbar strain, and received physical therapy.
In July 1992, appellant went bungee jumping in Las Vegas, and in late August 1992, appellant rode a bull at a rodeo. Appellant's back injury progressively worsened between August and the end of the year. On January 31, 1993, Dr. Walter diagnosed appellant's back problem as a ruptured or herniated disk. After the diagnosis, appellant went snow skiing at Lake Tahoe. In April 1993, appellant experienced severe low back pain. When additional tests reconfirmed appellant's disk herniation, Dr. Walter recommended surgery. After Dr. Hans O. Wendenburg seconded this opinion, appellant underwent surgery on June 14, 1993.
At trial, Doctors Walter and Wendenburg testified by deposition as medical expert witnesses on the cause of appellant's herniated disk and subsequent surgery. Appellant never told either doctor during his office visits that he had been bungee jumping or bull riding. Both doctors testified that based on a reasonable degree of medical probability the appellant's herniated disk was caused by the collision. Dr. Walter admitted on cross-examination, however, that it was possible that activities such as bungee jumping and bull riding could cause a disk herniation, and that these activities could aggravate a disk that was already herniated. Dr. Wendenburg testified that common sense dictated that a man with a back injury should not go bull riding, and that appellant had exhibited bad judgement when he risked further injury to his back by doing so.
LEGAL SUFFICIENCY
Appellant contends that there is no evidence to support the jury's findings in Special Issues Number One and Two. The jury answered those issues as follows:
QUESTION NO. 1: Did the negligence, if any, of the persons named below proximately cause the injury in question?
Answer "yes" or "no" for each of the following:
a. Fernando Avendoano Morales Yes
b. Gary Allen Edge Yes
QUESTION NO. 2 [conditioned on Question No. 1]: What percentage of the negligence that cause the injury do you find to be attributable to each of those found by you, in your answer to QUESTION NO. 1, to have been negligent? . . .
a. Fernando Avendano Morales 25%
b. Gary Allen Edge 75%
Total 100%
In reviewing no evidence points, the reviewing court considers only the evidence and inferences that tend to support the finding, and disregards all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). All evidence must be considered in a light most favorable to the jury finding. Dodd v. Texas Farm Prods. Co., 576 S.W.2d 812, 814 (Tex. 19
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