_______________________________________________________________________

MARK BUNYARD

RICHARD GARZA, LA BARRETA

COMPANY, KENEDY MEMORIAL

FOUNDATION AND/OR KENEDY

RANCH, AND STUART SASSER

_______________________________________________________________________

_______________________________________________________________________

Opinion

This is an appeal from a take-nothing judgment rendered in favor of Richard Garza and La Barreta Company,⁽¹⁾ appellees.

Mark Bunyard, appellant, arranged a hunting excursion on the Kenedy Ranch for some of his associates, Dominic Valente and Ronald LaPointe, for the weekend of February 17-19, 1995. Bunyard arranged the excursion through La Barreta Company. During their time on the Ranch, the hunters were led by Richard Garza, a La Barreta employee. In the scope of his employment, Garza would drive hunters around the Ranch in a Suburban owned by La Barreta. During the weekend, Garza drove the Suburban on a hunt, with Bunyard as a passenger. Bunyard claimed that Garza operated the vehicle at excessive speeds, given the terrain over which they were traveling. He testified that he and the other passengers, Valente and LaPointe, were "thrown around," hitting their heads and bodies against the vehicle's interior. He claimed the impact caused him spinal injuries. Bunyard filed suit against La Barreta.

The trial court entered judgment on the jury's verdict finding that no negligent action by La Barreta was the proximate cause of Bunyard's injuries.

By his first issue, Bunyard contends that the judgment of the trial court was erroneous because the jury's findings were against the great weight and preponderance of the evidence. In conducting a review of the factual sufficiency of the evidence, we examine all of the presented evidence, regardless of its effect on the reviewed finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986); Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 778 (Tex. App.--Corpus Christi 1999, no pet.). We may reverse the challenged findings only if they are "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pittsburgh Corning Corp., 1 S.W.3d at 778.

The jury was asked to determine if the negligence, if any, of La Barreta (through its agent, Garza) proximately caused injury to Mark Bunyard. Proximate cause is "that cause, unbroken by any new and independent cause, which produces injury and without which the injury would not have occurred." Portlock v. Perry, 852 S.W.2d 578, 583 (Tex. App.--Dallas 1993, writ denied). It consists of two elements: cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). "Cause in fact" means that the act or omission was a substantial factor in bringing about the injury, and without it harm would not have occurred. Id. "Foreseeability" means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his act created for others. Id. The evidence must show a clear connection between the defendant's acts and the plaintiff's damages.

The record reflects that all four participants in the hunting excursion testified. Garza testified that he has led hundreds of similar excursions over the same terrain while employed by La Barreta. He testified that while traveling on the caliche roads on the Ranch, it is his practice to maintain the speed limit of twenty-five to thirty miles per hour. On all other roads and off-road, he said, the speed limit is dictated by an assessment of what is a safe traveling speed, but acknowledged that it would be dangerous to drive any faster than ten or fifteen miles per hour on that land. Garza testified that it is his practice to drive more slowly as the terrain becomes more treacherous; that it would be unimaginable to drive as fast as twenty or thirty miles per hour in the areas where he hunted; and that he had never reached such speeds in those areas. Garza acknowledged that he did not recall the Bunyard hunt specifically, but did recognize Bunyard by sight.

Valente testified that he had been on numerous "driving hunts," or hunts where vehicles were used to pursue the prey. He agreed that while the guide is the driver, the hunters retain a certain amount of responsibility to tell the guide if he is driving unsafely. When asked what speeds the Suburban reached during the hunt, Valente admitted that it would be hard to provide an exact figure, but estimated the speeds to be "30, 40 miles an hour, maybe more." Valente also admitted, however, that he did not look at the speedometer and that all of his opinions about the speed of the vehicle were estimates. Valente recalled that neither the hunters in the group nor Bunyard ever told Garza that he was driving too fast or unsafely. Valente testified that he did not believe that Garza did anything out of the ordinary.

La Pointe testified that he believed the vehicle was exceeding thirty miles per hour while in pursuit off-road, but admitted that, like Valente, he never saw the speedometer. He recalled that the hunters would have been "tossed around pretty well" even if they had been traveling at five or ten miles per hour. He agreed that common sense would have told anyone to tell the driver to stop and slow down if there was a chance of serious injury, but recalled that none of the passengers ever made such a request. He remembered that Bunyard reported some back problems immediately after the hunt concluded. LaPointe concluded that Garza was "excellent" with the truck.

Finally, Bunyard testified on his own behalf. He said that the only cautionary instruction Garza provided was a warning that the hunters not chamber a round in their rifles while in the truck. More particularly, Bunyard stated that Garza never told him or anyone else to put on a seatbelt. Bunyard also admitted that no one stopped him from wearing a seatbelt and that he made a conscious decision to not restrain himself.

Bunyard stated that when Garza took the Suburban off-road, he was "bounced around," and said that he hit his head on the roof of the vehicle several times. He testified that where Garza took the Suburban off-road, the grass was very high and that he could not see the terrain. Bunyard estimated that in these conditions, Garza was driving the vehicle at approximately thirty miles per hour or faster. He testified that Garza gave no warning that he was going off-road and that Garza drove "a little rough" while in the off-road pursuit. Bunyard admitted that he never asked Garza to alter his driving manner.

Bunyard furthermore testified that he had never had back problems prior to this hunting trip, but said that within ten days after the hunt, he began to have chest pains. He stated that he informally visited a friend who is a doctor on at least three occasions within the next fourteen months to describe his pain, but stated that he did not see a doctor in an office until approximately fourteen months after the hunting trip. Nevertheless, Bunyard testified that he had suffered trauma to his cervical, thoracic, and lumbar vertebrae. His doctor corroborated this testimony. Bunyard testified that the pain was often debilitating and had caused him to substantially reduce his workload and cease his hunting guide business altogether.

It is the jury's province to evaluate the testimony presented, judge the relative credibility of that evidence, and determine the weight to be given to that evidence. See Duron v. Merritt, 846 S.W.2d 23, 26 (Tex. App.--Corpus Christi 1992, no writ). When provided with conflicting evidence, the jury may disbelieve any part or all of the testimony of one witness in favor of part or all of the testimony of others. Mashcon Wholesale Distrib., Inc. v. A. Benjamini & Co., Inc., 982 S.W.2d 119, 125 (Tex. App.--Houston [1st Dist.] 1998, pet. denied).

Here, the evidence is clearly conflicting. However, the jury was free to assess the testimony and determine the weight to give to each side. The jury's verdict indicates that it chose to give more weight to the testimony which suggested that Garza had operated the vehicle in a safe manner and that Bunyard's injuries were not proximately caused by Garza's actions. The record supports those conclusions. Accordingly, we hold that the evidence was sufficient to support the judgment. Bunyard's first issue is overruled.

Bunyard argues in his third issue that the trial court erred by allowing lay opinion testimony on Garza's fault or negligence. Bunyard complains specifically that certain parts of Valente's testimony contained legal conclusions which he was not competent to present. However, the record reflects that Valente's testimony was presented on September 22, 1998. Bunyard presented his first and only objection to Valente's competence the following morning. To preserve a complaint for review, the record must show that the party complaining made a timely objection. Tex. R. App. P. 33.1(a)(1). An objection made one full day after the admission of testimony is not timely and results in waiver. Bunyard's third issue is overruled.

By his second issue, Bunyard argues that the trial court erred by allowing the admission of evidence of his use or non-use of seatbelts at the time of this incident. Bunyard contends that the admission of this testimony unfairly prejudiced his case. At the time of this incident, the law of this State was that the "use or nonuse of a safety belt is not admissible evidence in a civil trial." See Act of June 15, 1985, 69th Leg., R.S., ch. 804, §1, 1985 Tex. Gen. Laws 2847, repealed by Act of May 23, 1995, 74th Leg., R.S., ch. 165, §24(a), 1995 Tex. Gen. Laws 1871. However, the express language of the governing statute provided that the provisions of the statute "relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways. . . ." See former Tex. Rev. Civ. Stat. Ann. art. 6701d §21 (Vernon 1994). The statute further provided that a "highway" is the "entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of hte public for purposes of vehicular travel." See former Tex. Rev. Civ. Stat. Ann. art. 6701d §13(a) (Vernon 1994). The record shows that the caliche roads on the Ranch were neither publicly maintained nor open to the use of the public for vehicular travel. Accordingly, the limitation is inapplicable here. Bunyard's second issue is overruled.

In his fourth issue, Bunyard argues that the "trial court erred by failing to instruct the jury as to the duty of the driver of an automobile in the claims of negligence against LaBarreta." Specifically, Bunyard argues that he was entitled to have the jury instructed that he

has made claims against Richard Garza for his negligence related to his erratic driving in an unsafe manner, and failing to advise or warn his passengers of the danger of the rough terrain, failing to exercise caution and care to protect his passengers, failing to identify and avoid dangers in the terrain, failing to operate the vehicle at a safe speed given the terrain, [and] failing to keep a proper lookout.

The record indicates that the jury was properly instructed with regard to the meaning of "negligence," "ordinary care," and "proximate cause."

The court should submit "such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277. The trial court is given broad latitude in determining the propriety of the questions, instructions, and definitions submitted to the jury. H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). Absent an abuse of that discretion, we will not reverse the trial court's judgment. Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995).

When the trial court refuses to submit a requested instruction or definition, our review is focused upon whether the request was reasonably necessary to enable the jury to render a proper verdict. Tex. R. Civ. P. 277; Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921 (Tex. App.--Beaumont 1999, no pet.). A trial court's charge "need not and should not burden the jury with surplus instructions." Id.

The proposed instruction sought by Bunyard reiterates the specific claims made in his petition. This proposed instruction constitutes a surplusage which the trial court was not required to incorporate in the charge. In a similar case, the court concluded that instructions similar to those sought here by Bunyard "were not necessary for the jury to render a proper verdict." Brookshire Bros., 997 S.W.2d at 921. We find no error in the court's refusal to submit the requested instruction. Bunyard's fourth issue is overruled.

The judgment of the trial court is AFFIRMED.

ROBERT J. SEERDEN, Chief Justice

Do not publish

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 20^th day of July, 2000.

1. The judgment was also rendered in favor of Stuart Sasser, owner of La Barreta Company, and Kenedy Memorial Foundation and/or Kenedy Ranch.