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Mattingly v. Swisher International, Inc.

Court of Appeals of Texas, Third District, Austin

January 11, 2018

John Mattingly and Connie Mattingly, Individually and as Next Friend of Tristan Mattingly, Appellants
Swisher International, Inc.; and Terry Ray Weber, Appellees


          Before Justices Puryear, Field, and Bourland



         John Mattingly and Connie Mattingly, individually and as next friend of their son, Tristan Mattingly, appeal from a take-nothing judgment in their suit for damages allegedly caused by an automobile collision with Terry Ray Weber. The judgment was based on a jury finding that Weber's negligence was not a proximate cause of the collision. The Mattinglys bring two issues on appeal challenging (1) the factual sufficiency of the evidence supporting the jury's causation finding and (2) the trial court's refusal to grant a motion for directed verdict regarding Tristan Mattingly's contributory negligence. We will affirm.


         The jury heard evidence that the collision occurred on Live Oak Drive in Burnet County. It is undisputed that Weber's vehicle, while traveling in reverse, struck the Mattinglys' vehicle, which was being driven by Tristan Mattingly. The collision occurred at approximately 12:30 p.m. on a Saturday in April 2014. Weber and each of the Mattinglys testified at trial and provided accounts of how the collision occurred. According to Weber, he and his wife were driving around their new neighborhood in Granite Shoals to look at some small parks in the area around Lake LBJ. Live Oak Drive, a rural road, had no striping down the middle or on either side and was barely wide enough for two small cars to pass each other. Weber recounted that:

My wife and I had been discussing that she liked the native plants of the area. Our property has been totally cleared. It has nothing but grasses on it, so we were looking at these types of vegetation in the area. When I come up on the Live Oak location there was a plot there that had a garden that the owner had placed native plants in. I had gone by and realized that I wanted to back up. There was not a soul out on the streets that morning, or at least I didn't think. And that was my thought at the time was there's-this town is dead. There is nobody out on Saturday morning. So, accidentally and without thinking, I looked in my side mirror, I didn't see anything, so I started backing up.

         The view through the back window of Weber's Chevrolet Traverse sport utility vehicle was blocked by boxes stacked in the back of the vehicle. Although the vehicle was equipped with a back up camera, Weber had not had the car very long and was unaccustomed to using the camera feature. Instead he checked his side view mirrors, which he testified would reflect anything more than 60 feet behind him. Weber testified that he did not see any vehicle behind him and, two to three seconds after stopping, he backed up at the speed "you would probably generally do backing out of a driveway." Weber stated that he backed up one to two car lengths at a speed of no more than five miles per hour. He felt an impact and assumed he had hit a rock, so pulled forward and got out of his vehicle.[1] Weber testified that Connie Mattingly got out of the Mattinglys' vehicle and said to Weber "what the [expletive] are you doing?" Weber responded that he was sorry and that he had not seen the Mattinglys' vehicle. Weber testified that his vehicle had a scratch on the plastic bumper about the size of his thumb, that the hood of the Mattinglys' vehicle had been "pushed back towards the vehicle, " and that it looked like his bumper hit the Mattinglys' car just above the headlights and pushed the hood back without damaging the headlights. Weber stated that he was not injured by the impact.

         In his testimony, Tristan Mattingly described the collision as follows:

I was just driving down the road and I saw a vehicle in front of me apply his brakes and it looked like he had come to a stop and I stopped. I started slowing down and realized that he was stopped and I did-I saw his [reverse] lights come on and I turned and saw that there was a driveway on my left and I thought he was going to back into it. And so there was more than enough space, roughly 60 feet between the front end of our vehicle and the back end of his, and I saw him start coming in reverse, but quickly, and my mom leaned forward and told me to back up and I looked down and put it in reverse and he hit us by the time I-from looking at his vehicle to going down to try to grab the shifter, he hit us.

         Tristan testified that he was stopped three to four car lengths behind Weber's vehicle and that Weber backed up for four seconds at a speed of approximately 20 to 30 miles per hour. Tristan stated that he did not honk his horn and that the impact "pushed [him] forward real hard and the seat belt caught [him] and slung [his] head forward real hard." Tristan attributed a herniated disc in his back to the severity of the impact from Weber's car backing into his vehicle.[2]

         Officer John Ortis, a patrol supervisor with the Granite Shoals Police Department testified that he was called to the scene immediately after the collision. He recounted that:

It's a two vehicle road. Unit A-or Unit 1, I apologize, had backed into Unit 2. The driver of Unit 1 stated that he had stopped to look at a deer. He was a very large male deer and he stopped, put it in reverse to back up to look at the deer, which is very common in Granite Shoals, and backed up and struck Unit 2.[3]

         Officer Ortis also testified that "it's a common instance to have people stop and look at deer." Although Weber's testimony at trial was that he had backed up to look at a plant and that he did not know where the deer story originated, defense counsel argued, and Connie Mattingly agreed, ...

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