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Bailey v. Deatherage8/31/1995
James P. Bailey, appellant, brought a personal injury suit against David Deatherage, appellee. The jury found that no one was negligent and rendered a verdict of unavoidable accident. The trial court entered a take-nothing judgement in favor of Deatherage and overruled Bailey's motion for new trial. Bailey challenges the trial court's ruling on his motion for new trial on the basis that the evidence showed that Deatherage was negligent and that Bailey incurred damages. Deatherage raises a cross-point of error arguing that this is a frivolous appeal brought without sufficient cause, and costs should be awarded against appellant pursuant to TEX. R. APP. P. 84.
Summary of Facts
Early in the afternoon of September 16, 1991, David Deatherage was driving his car on the Katy freeway. Deatherage's car had front wheel drive and his front tires were only two weeks old. He entered the freeway from an overpass entrance and was heading west, after a rain shower had just passed.
After switching first to the center and then to the left lane at a speed of 35-40 miles per hour, Deatherage began traveling about 50, or possibly 55, miles per hour. There were no visible sheets of water or noticeable noises of water splashing the car. Suddenly, Deatherage's car hit standing water, and the car hydroplaned.
The front of the car swung to the left and the car proceeded down the highway sideways. The car was perpendicular to the cement dividing barrier when the front of the car made contact with it and spun 360 degrees. Deatherage took his foot off the gas; the car would not steer or respond. Once the car went out of control, Deatherage closed his eyes, held on, and braced himself for any eventuality.
The car came to a stop at an angle facing east, straddling the divider line between the left and center lanes, with the front of the car in the left lane and the rear of the car in the center lane. The cars traveling in the center lane were able to stop. However, Bailey's car, traveling in the left lane, collided with Deatherage's car and turned it back around 180 degrees, facing west. Bailey suffered physical injuries as a result of this collision and sued Deatherage for personal injury . At the conclusion of the trial, the jury rendered a verdict of unavoidable accident -- no party was negligent. The trial court entered a take-nothing judgement in favor of Deatherage and denied Bailey's motion for new trial. Bailey perfected this appeal from that judgment.
Standard of Review
A reviewing court considering factual insufficiency must consider all of the evidence presented at the time of trial and set aside the verdict and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of the presence in the record of some evidence of probative force in support of the verdict. Garay v. Texas Employers' Ins. Ass'n., 700 S.W.2d 657, 661 (Tex. App. -- Corpus Christi 1985, no writ). The scope of review for an insufficient evidence point encompasses all the evidence supporting and contradicting the finding. Harvey v. Culpepper, 801 S.W.2d 596, 598 n.1 (Tex. App. -- Corpus Christi 1990, no writ). A conclusion that a verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust requires that the verdict be set aside. Soriano v. Medina, 648 S.W.2d 426, 429 (Tex. App. -- San Antonio 1983, no writ). A point of error in a motion for new trial is a prerequisite to complain on appeal that a jury finding is against the overwhelming weight of the evidence. Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991).
Suff
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