Benavente v. Granger (Tex.App.- Houston [1st Dist.] Oct. 23, 2009)(Radack)
automobile accident, rear-ender, negligence, appeal with partial reporter's record)
Chief Justice Radack  
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00227-CV Maricella Benavente v. Daniel Granger and Beverly Granger
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Hon. Joseph Halbach
Dissenting Opinion by Justice Sharp in Benavente v. Granger (would hold that Benavente provided
overwhelming evidence of specific acts of negligence on Granger’s part: not paying attention to the traffic
in front of him, following too closely for the conditions, and driving too rapidly for the conditions.  But for
these specific acts of negligence, Granger would not have rear-ended Benavente’s car.)


Appellant, Maricella Benavente, appeals from a judgment, rendered upon a jury verdict, that she take
nothing in her suit for damages resulting from a rear-end automobile collision. In one issue, she contends
that "the jury verdict is incorrect and that [she] should have prevailed as a matter of law."

We affirm.


Appellee, Daniel Granger, rear-ended Benavente's car with his car. Granger was driving in the left-most
lane, approaching an intersection. Two or three cars were stopped in front of him, where the light had only
just turned green. Although the light was green, Granger slowed down because the cars in front of him
were not moving. He had observed traffic in the adjoining lane, and he estimated that he was driving about
10 miles per hour more slowly than the drivers in the next lane.

Granger's 10-year-old son, who was a passenger in the car, pointed out a yellow car that was approaching
the intersection from the side lane. Granger briefly looked up at the yellow car, which he believed was a
Lamborghini. When he looked back, he saw that the cars in front of him were stopped on the other side of
the intersection. He braked hard, but his car hit the rear end of Benavente's car, which then collided with
the car in front of it. Granger testified at trial that there was very little impact inside his car.

Benavente sued Granger for negligence. Granger testified that he was alert, not following too closely, and
not speeding, although he conceded that he hit Benavente's car. On cross-examination, he agreed that a
driver should be attentive to traffic around him, maintain a safe distance, and drive at a safe speed. The
jury found that Granger was not negligent, and Benavente appealed.


Benavente's sole issue asks "whether the jury verdict is incorrect and that plaintiff should have prevailed
as a matter of law." Although Benavente states that "this is a legal sufficiency challenge," her issue is
ambiguous as to whether she is challenging the legal or factual sufficiency of the evidence.

Justice Calvert wrote, "It was said in the beginning that magic in words in points of error should be as
extinct as the dodo bird." See Robert W. Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error,
38 Tex. Law Rev. 361, 371 (1960). He further advised:

If the language of a point of error leaves a Court of Civil Appeals in doubt as to whether it is a "no
evidence" point, an "insufficient evidence" point, or a "preponderance of the evidence point" point, the
Court should resolve the doubt by looking to the procedural predicate for the point, the argument under
the point, and the prayer for relief.

Id. at 372.

When the party's brief was ambiguous, we and other courts of appeals have looked to a party's prayer for
relief to determine what standard of review to apply. See, e.g., Skains v. Torch Offshore, L.L.C., No. 01-07-
00008-CV, 2008 WL 963039, at *1 (Tex. App.--Houston [1st. Dist.] April 10, 2008, no pet.) (memo. op.)
(construing issue to be factual sufficiency when appellant cited legal sufficiency standard of review,
analyzed issue as factual sufficiency, and sought remand); City of Univ. Park v. Van Doren, 65 S.W.3d
240, 246-47 (Tex. App.--Dallas 2001, pet. denied) (construing appellate issue to be legal sufficiency when
appellant described issue in terms of factual sufficiency, but cited no standard of review and sought

Benavente's brief recites the legal sufficiency standard of review. However, in her one-page argument, she
argues for strict liability under the Texas Transportation Code, saying that the "evidence is overwhelming
that Mr. Granger was negligent and there is absolutely no evidence whatsoever that Ms. Benavente was
negligent in any respect." This argument is more like one of factual sufficiency than of legal sufficiency, as
Benavente in essence argues that the verdict is against the great weight and preponderance of the
evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) ("When a party attacks the
factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must
demonstrate on appeal that the adverse finding is against the great weight and preponderance of the
evidence."). In addition, Benavente's prayer for relief seeks remand, which is the proper remedy for factual
insufficiency. Compare Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex. 1981) (holding that
remand for new trial is remedy for factual insufficiency of evidence) with Beach v. Resolution Trust Corp.,
821 S.W.2d 241, 245 (Tex. App.--Houston [1st Dist.] 1991, no writ) (holding that rendition is remedy for no

Moreover, in her motion for new trial, Benavente argued that "the evidence presented at trial conclusively
proved that defendant acted negligently, therefore, the jury's findings were against the great weight and
preponderance of the evidence." Thus, Benavente's factual sufficiency challenge is preserved. See Tex.
R. Civ. P. 324(b)(2).

Considering the procedural predicate and her argument and prayer for relief, we conclude that Benavente
has challenged the factual sufficiency of the evidence to support the jury's verdict that Granger was not


"When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the
burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence." Dow Chem. Co., 46 S.W.3d at 242. In reviewing a challenge that a
finding is against the great weight and preponderance of the evidence, we consider and weigh all of the
evidence and may set aside the verdict only if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). A jury may believe one witness and disbelieve another, and it may resolve inconsistencies in
any witness's testimony. Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.--Houston [1st Dist.] 2001, pet.


The jury charge included the following relevant definitions:

NEGLIGENCE" means failure to use ordinary care; that is to say, failure to do that which a person of
ordinary prudence would have done under the same or similar circumstances, or doing that which a
person of ordinary prudence would not have done under the same or similar circumstances.

ORDINARY CARE" means that degree of care which would be used by a person of ordinary prudence
under the same or similar circumstances.

PROXIMATE CAUSE" means the cause which, in a natural and continuous sequence, produces an event,
and without which cause such event would not have occurred; and in order to be a proximate cause, the
act or omission complained of must be such that a person using ordinary care would have foreseen that
the event, or some similar event, might reasonably result therefrom. There may be more than one
proximate cause of an event.

Benavente had the burden to prove that Granger was negligent and that his negligence was a proximate
cause of the occurrence. See Neese v. Dietz, 845 S.W.2d 311, 313 (Tex. App.--Houston [1st Dist.] 1992,
writ denied). Benavente contends that she proved Granger's negligence because the Texas
Transportation Code requires a driver to maintain a safe following distance and to control the speed of his
car so that he can "safely stop without colliding with . . . another vehicle." Tex. Transp. Code Ann. §§
545.062(a) (maintaining following distance), 545.351(b)(2) (controlling car's speed) (Vernon 1999).
Benavente argues, in essence, that the collision itself is evidence that Granger violated those statutes and
that violation of those statutes proves specific acts of negligence.

"[A] statute that requires a driver proceed safely imposes on the driver a duty of reasonable care, thus
precluding a negligence per se instruction." La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998);
see also Pool v. Ford Motor Co., 715 S.W.2d 629, 631-32 (Tex. 1986) (concluding that court of appeals
erred in holding that negligence per se applied to speeding under article 6701d, section 171(b) of former
Texas Revised Civil Statutes). Likewise, a breach of section 545.062 does not constitute negligence per
se. Knighten, 976 S.W.2d at 675 & n.1 (construing substantively same language in predecessor statute in
article 6701d, section 61(a) of former Texas Revised Civil Statutes). Section 545.062 imposes on the
driver the same duty of reasonable care as that imposed under the common law. See id.

Under common law, the mere occurrence of a rear-end collision does not establish negligence as a matter
of law. Jordan v. Sava, Inc., 222 S.W.3d 840, 850 (Tex. App.--Houston [1st Dist.] 2007, no pet.); Neese,
845 S.W.2d at 314. The plaintiff must prove specific acts of negligence on the part of the defendant driver
and must prove proximate cause. Neese, 845 S.W.2d at 314. With regard to rear-end collisions,
"standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure
to the trier of the facts." Id. Conflicts in the witnesses' testimony present credibility questions for the jury to
resolve. Id. at 314-15.

The parties provided us with a partial reporter's record, consisting only of Granger's trial testimony. (1)
Granger testified that he looked away for a "brief moment," that he was driving more slowly than
surrounding traffic, that he was slowing down as he approached cars stopped by a light that had just
turned green, and that he was not "tailgating." He testified that he was alert, although he also testified that
he was distracted from the car in front of him during the moment that he looked at the yellow car. On the
other hand, Granger also testified that he "ran into the back of her car, yes, I did." Granger testified that it
was not a forceful collision, saying, "[I]t was a touch." When asked, "You can't say she was at fault, can
you?," Granger replied, "No, I can't." On cross-examination, Granger testified that, in general, a driver
should pay attention and maintain a speed and following distance that are safe for the conditions. He later
testified on redirect examination that he felt that he had kept a safe distance.

Considering all of the evidence provided, we hold that the jury's verdict was not so contrary to the great
weight and preponderance of the evidence that it was clearly wrong and unjust. We overrule Benavente's
sole issue.


We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Taft. (2)

Justice Sharp, dissenting.

1. The parties here have agreed to proceed on a partial reporter's record. We "must presume that the partial reporter's
record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues." Tex. R.
App. P. 34.6(c)(4).

The Honorable Tim Taft, retired justice, Court of Appeals for the First District of Texas, participating by assignment.