Russell v. Colson

John Henry RUSSELL, Debbar Russell,
Individually and as Administratrix of the
Estate of Cleophus Russell, Deceased v.
Thomas COLSON

95-1147                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Motions -- motion for judgment NOV or new trial granted only
     rarely -- appellant bore burden of proof. -- The granting of
     a motion for judgment NOV or new trial will not be affirmed
     except in rare circumstances; no matter how strong the
     evidence of the party having the burden of proof in a
     negligence case, that party is not entitled to have those
     facts declared to have reality of law unless there is utterly
     no rational basis in the situation testimonially,
     circumstantially, or inferentially for a jury to believe
     otherwise; appellants bore the burden of proof in this
     negligence case. 

2.   Witnesses -- jury determines both credibility of as well as
     weight and value of testimony. -- It is the sole province of
     the jury to determine not merely the credibility of the
     witnesses, but also the weight and value of their testimony. 
     
3.   Evidence -- jury's verdict supported by substantial evidence -
     - trial court's denial of motion for new trial affirmed. --  
     Where appellee put on a substantial amount of evidence that
     supported the jury's verdict, and appellants failed to show
     there was no rational basis for the jury's verdict, the
     supreme court affirmed the trial court's denial of appellants'
     motion for a new trial.  

4.   Appeal & error -- no authority given for argument -- argument
     without merit. -- Appellant's argument that, because the jury
     deliberated only twenty-five minutes and took only one exhibit
     with it, the trial appeared unfair and thus JNOV was warranted
     for this reason alone was without merit where appellant failed
     to provide any supporting legal authority or convincing
     argument that a minimum time is required for jury deliberation
     or that a short deliberation in itself is grounds for the
     granting of a motion for JNOV or new trial.
     

     Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge;
affirmed.
     Christopher C. Mercer, for appellants.
     Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by:  David
M. Fuqua, for appellee.

     Tom Glaze, Justice.
     On November 21, 1990, John Henry Russell was driving a Ford
pickup, eastbound on Highway 88 near the Altheimer city limits when
it collided with Thomas Colson's Ford Bronco that was heading west
on Highway 88.  The collision took place at or about where the
highway intersects Division Street.  Russell, on April 24, 1992,
filed suit against Colson, alleging the November 21 accident was
caused solely and proximately by Colson.  Following a three-day
trial, the jury returned a verdict in Colson's favor.  Afterwards,
Russell filed a motion for judgment notwithstanding verdict or in
the alternative, for a new trial, which the trial court denied.
     On appeal, Russell argues the trial court erred in denying his
motion for judgment NOV or new trial and asserts the jury lacked
substantial evidence to support its verdict in behalf of Colson. 
Russell misstates this court's standard of review when the party
seeking directed verdict or a motion for judgment notwithstanding
the verdict is the party having the burden of proof in a negligence
case.  As this court stated in Potlatch v. Missouri Pac. R.R. Co.,
321 Ark. 314, 902 S.W.2d 217 (1995), it does not affirm the
granting of such motions except in rare circumstances.  The
Potlatch court further held that no matter how strong the evidence
of the party having the burden of proof in a negligence case, "that
party is not entitled to have those facts declared to have reality
of law, unless there is utterly no rational basis in the situation,
testimonially, circumstantially, or inferentially for a jury to
believe otherwise."  Here, Russell bore the burden of proof in this
negligence case and is therefore bound by the standard reiterated
in Potlatch.  Russell's misstatements aside, we conclude from our
review that Colson put on a substantial amount of evidence that
supported the jury's verdict.  And it is for this reason, we affirm
the trial court's denial of a new trial.  ARCP Rule 59(a)(6);
Griffin v. Woodall, 318 Ark. 383, 892 S.W.2d 451 (1995).
     At trial Russell and Colson offered conflicting and competing
theories of how the November 21 accident occurred.  Russell claimed
that, as he was traveling east in his lane on Highway 88, the
Colson vehicle, traveling west on the highway, was weaving, which
caused Russell to enter the westbound lane in an unsuccessful
attempt to avoid a collision.  Colson, on the other hand, denied
his vehicle weaved and offered evidence that Russell's pickup truck
merely turned left into the westbound lane in an attempt to enter
Division Street.  Two eyewitnesses, Page Walt and Matt Jeter,
testified in support of Colson's version of what happened.  Walt
related that he was driving his pickup on Highway 88 following
Russell's truck when Russell crossed into Colson's lane in an
attempt to turn left onto Division Street.  Jeter was a passenger
in Walt's truck, and he corroborated Walt's version of what
transpired.  Jeter also testified that it appeared Russell never
saw Colson's vehicle.  Russell's own expert, Joel Hicks, testified
that there were more points of impact in Colson's lane of travel
than in Russell's, that it was possible the collision occurred in
Colson's lane and that it was physically possible for the Russell
vehicle to have crossed the highway center line and caused the
accident.  Hicks further stated that examination of Russell's truck
showed the steering wheel was "turned half a revolution to the
left," thus supporting Colson's version of what happened.
     Although Russell argues his cross examination of Walt and
Jeter resulted in raising some questions as to whether they
remembered correctly the events surrounding the accident, these two
witnesses' testimony largely conformed to and supported Colson's
version.  And, while Russell's expert rejected Colson's story that
Russell's vehicle was turning left when the accident happened,
there was ample evidence, including the expert's own testimony, to
show Russell did negligently turn left into Colson's lane.  This
court has stated that it is the sole province of the jury to
determine not merely the credibility of the witnesses, but the
weight and value of their testimony.  Gilbert v. Shine, 314 Ark.
486, 863 S.W.2d 314 (1993).  
     In the present case, Russell failed to show there was no
rational basis for the jury's verdict.  Nor, in fact, did he show
the court erred in denying his new trial motion, since there was
clearly substantial evidence to support the verdict rendered in
Colson's behalf.         
     In conclusion, we briefly note that Russell raises an argument
that because the jury deliberated only twenty-five minutes and took
only one exhibit with it, the trial appeared unfair and thus JNOV
was warranted for this reason alone.  We dispose of this argument
by stating that Russell fails to provide any supporting legal
authority or convincing argument that a minimum time is required
for jury deliberation or that a short deliberation in itself is
grounds for the granting of a motion for JNOV or new trial.
     Affirmed.
     CORBIN, J., not participating.