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Torts No. 13-01-827-CV, 1/30/2003. FACTS: Phillip Wayne Pearson and Grace Kathryn Pearson appeal a take-nothing judgment in favor of DeBoer Inc. in a suit involving a motor vehicle accident. Phillip Pearson was traveling on a multi-lane highway in stop and go traffic when his vehicle was struck from the rear by a tractor-trailer rig driven by Javier Garcia, who was driving in the course and scope of his employment with DeBoer. Pearson brought suit against Garcia and DeBoer for property damage to his vehicle and personal injuries to his head and neck. Following trial, the case was submitted to the jury on a general negligence question (“Did the negligence, if any, of JAIME GARCIA proximately cause the occurrence in question?”), and the jury unanimously answered “no.” On appeal, the Pearsons attack the legal and factual sufficiency of the evidence to support the jury’s finding that Jaime Garcia was not negligent. HOLDING: Affirmed. At the time of the accident, the parties were traveling on I-635 in Dallas, Texas, at approximately 3 p.m. The roadway was dry and visibility was good. The parties do not allege that any vehicular malfunction caused the accident at issue. The speed limit on the interstate was 60 mph, but in the course of one-half mile, traffic had come to a complete stop two times. After the second stop, Garcia increased his speed to 30 to 35 mph, then traffic came to a stop again, and Garcia rear-ended Pearson. Traffic in the left lane was moving more rapidly than in Pearson’s lane, and the other lanes had stopped or were stopping at the time of the incident. Garcia testified that he was traveling at 30 miles an hour and was “real close” when he realized the traffic ahead of Pearson and in the lanes on either side was stopping. Only 25 feet separated the two vehicles when Garcia realized Pearson’s vehicle was stopped. Garcia testified he did not have time to swerve to the left or right, or honk his horn. He testified that he was not distracted and was keeping a proper lookout, but that he “didn’t expect for [Pearson] to stop so quickly.” Garcia testified that he did not see any brake lights on Pearson’s vehicle, “like he was still coasting, he was still moving.” In response to questioning by defense counsel, Garcia testified he did not believe that Pearson did anything to cause the accident. According to Pearson, the traffic had been “stop-and-go” for a “good ways.” Pearson came to a “dead stop,” leaving about 10 feet separating his vehicle and the vehicle in front of him. The traffic started moving again, and Pearson shifted into first gear and began moving. Pearson testified that he “cleared” his mirror on the right and looked to the left, and the impact then occurred. The impact with Garcia did not propel Pearson’s vehicle into the vehicle in front of him. The parties did not stop their vehicles, but instead drove their vehicles to the side of the highway, and Pearson telephoned for assistance. Pearson declined medical assistance at the scene. Appellants ask the court to find the evidence factually and legally insufficient based on the fact that Garcia admittedly was following Pearson at a close distance to prevent anyone from cutting into his lane, that Garcia said he “couldn’t judge” or “didn’t judge the distance properly,” and that Garcia admitted that the accident was “partly” his fault. Nevertheless Garcia testified that he did not think the accident was preventable and that he was unable to maintain a greater following distance “because of the traffic.” The mere occurrence of a rear-end automobile accident is not of itself evidence of negligence. The plaintiff must prove specific acts of negligence on the part of the following driver and must also prove proximate cause. The issue of whether a rear-end collision raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of the particular case. Whether the plaintiff succeeds in proving negligence and proximate cause by a preponderance of the evidence is within the jury’s province to determine. Appellants base their arguments for reversal, in part, on �545.062 of the transportation code, which requires a driver following another driver to maintain “an assured clear distance between the two vehicles.” However, a breach of this section of the transportation code does not create per se negligence, but instead creates the same duty of reasonable care as under the common law. “In cases of this character, 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.” The jury heard all the evidence, observed the witnesses, and acquitted Garcia of any negligence that was the proximate cause of the Pearsons’ damages. The evidence is legally sufficient to support the jury’s verdict in light of the parties’ descriptions of the traffic patterns and Garcia’s testimony regarding his perception of the traffic and Garcia’s belief that Pearson’s vehicle was moving with the traffic. With regard to the factual sufficiency of the evidence, the court agrees with appellants that the jury had before it contradictory evidence in the record from which the jury might have reached a different conclusion. However, the conflicts in the evidence and the credibility of the witnesses were for the jury to resolve, not this court. Based on its review of the record, the court cannot say that the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. OPINION: Valdez, C.J.; Valdez, C.J., Rodriguez and Amidei, JJ.

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