“It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony. The jury must also resolve conflicts and inconsistencies in the testimony of any one witness, as well as in the testimony of different witnesses. Jurors may believe one witness and disbelieve another, or believe part of the testimony of a witness and disbelieve any other part”
How later courts described this case
- “It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony. The jury must also resolve conflicts and inconsistencies in the testimony of any one witness, as well as in the testimony of different witnesses. Jurors may believe one witness and disbelieve another, or believe part of the testimony of a witness and disbelieve any other part”
Written by the judges who cited it.
The opinion
TIJERINA, Justice,
dissenting.
I respectfully dissent. Upon reconsidering the evidence in this case, I find it extremely difficult to accept that any failure on the part of appellant contributed to the accident or that appellee was not negligent. The jury finding to that effect is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust and as such would cause manifest injustice. The majority comments that the evidence is uncontradicted that appellant sustained physical pain and disfigurement, physical impairment, and loss of earning capacity in the future.
Appellant’s Motion for Rehearing contends that appellee was negligent as a matter of law. The suggested standard of review is premised on Judge Norvell’s authoritative opinion in Hoey v. Solt, 236 S.W.2d 244 (Tex.Civ.App.—San Antonio 1951, no writ) which pronounces the legal test for negligence as a matter of law as follows:
If reasonable minds can differ as to the inferences and conclusions to be drawn from the undisputed evidence, then the case is one for the jury. If reasonable minds can not differ, then an issue of law only is presented.
It cannot be gainsaid that one who fails to stop his automobile in response to a traffic signal but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.
My distinction between negligence as a matter of law and a “no evidence” point is predicated on Hoey v. Solt, supra. As stated in Lovell v. Stanford, 378 S.W.2d 399, 406 (Tex.Civ.App.—Austin 1964), rev’d, 386 S.W.2d 755 (Tex.1965), “[t]he circumstances surrounding an accident may be so strong that, unexplained, the inference of negligence and proximate cause to be drawn from them is one about which reasonable *868 minds could not differ and, hence, is one of law.”
Given a situation where reasonable minds may differ as to the truth, it is immaterial that the evidence may preponderate in favor of one party to such an extent that a verdict adverse to him would have to be set aside as against the weight of the evidence: It is the duty of the jury initially to determine the preponderance of the evidence, subject to the power of the court to grant a new trial should the juror make a finding against the evidence. 3 R. McDONALD, TEXAS CIVIL PRACTICE, § 11.28.2 at 238-239 (1970); see also Highway Insurance Underwriters v. Roberts, 224 S.W.2d 903 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n.r.e.).
There is evidence in this record which shows that appellee had previously driven the boat on a number of times, had been a passenger when skiers were towed, and had, before the occasion in question, pulled appellant. The evidence is undisputed that appellant was in the water behind the boat and without any justification or excuse of record appellee accelerated the motor boat to full speed with the steering wheel cocked hard left and in appellant’s due direction. The only reasonable inference that can be drawn from the evidence is that appellee’s failure to properly maintain control of the boat was the proximate cause of the accident. See Priest v. Myers, 598 S.W.2d 359 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ). An appellate court can review jury findings to determine if there is probative evidence to support such findings and to review the correctness of the legal conclusions from those findings. See Kentucky Central Life Insurance Co. v. Fannin, 575 S.W.2d 76, 80 (Tex.Civ.App.—Amarillo 1978, no writ), holding that “an assertion of no evidence has validity only if there is absence of any evidence of probative force, either direct or circumstantial, to raise an issue submitted.... ”
The complexities in determining the proper standard of review, for the rare and unusual case, where the trier of fact totally disregards the clear evidence, the extreme damages, dictates the need for judicial interpretation from the ultimate reviewer. “If the prevailing rule is to be abrogated, it is the exclusive prerogative of our Supreme Court....” Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.).
The interests of justice and fairness require that this cause be reversed and remanded. See Hines v. Nelson, 547 S.W.2d 378 (Tex.Civ.App.—Tyler 1977, no writ). Thus, having reconsidered the entire record, having reviewed the evidence in the light most favorable to appellee, I would conclude, as a matter of law, that the failure of appellee to maintain control of the boat was negligence and that such negligence was a proximate cause of the accident. Since there is no evidence of extenuating circumstances mitigating the presumption of negligence, I find the evidence factually insufficient to support the jury findings.
I would reverse and remand this cause for a redetermination of damages.