Young v. Honeycutt

Annotate this Case
James H. YOUNG v. Tammy Lynn HONEYCUTT

95-1209                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 15, 1996


1.   New trial -- appellant's argument without merit -- present
     rules of civil procedure do not require judge to state with
     particularity reasons for granting a new trial. -- Appellant's
     contention that the trial judge's order granting the new trial
     was deficient because it did not include a "finding" that
     stated with particularity the reasons for the judge's decision
     to grant a new trial or that the jury's verdict was clearly
     contrary to the preponderance of the evidence was without
     merit; there is no such requirement in the Arkansas Rules of
     Civil Procedure.

2.   New trial -- when a new trial may be granted -- trial court's
     discretion is limited. -- Rule 59(a)(6) of the Arkansas Rules
     of Civil Procedure provides that a new trial may be granted to
     all or any of the parties on all or part of the issues on the
     application of the party aggrieved when the verdict or
     decision is clearly against the preponderance of the evidence;
     the trial court has limited discretion in the matter; it may
     not substitute its view of the evidence for the jury's except
     when the verdict is clearly against the preponderance of the
     evidence; however, the trial court may grant a new trial when
     a miscarriage of justice has occurred. 

3.   New trial -- review of trial court's granting of new trial --
     standard on review. -- In reviewing the trial court's granting
     of a motion for new trial, the test is whether the judge
     abused his or her discretion; this standard requires a showing
     of "clear" abuse or "manifest" abuse by acting improvidently
     or thoughtlessly without due consideration; a showing of abuse
     of discretion is more difficult when a new trial has been
     granted because the party opposing the motion will have
     another opportunity to prevail.

4.   New trial -- new trial ordered -- no abuse of discretion
     found. -- Where appellant admitted that he never slowed down
     or applied his brakes before he hit the white car, even though
     he couldn't see anything but water, and where there was a
     distance of approximately 500 feet from the crest of bridge to
     accident site and nothing obstructing appellant's view from
     the crest of the bridge to the stopped vehicles, the evidence
     demonstrated a course of conduct contrary to that which an
     ordinary person would have undertaken when confronted with
     such an emergency; AMI 901, which was read by the trial court
     to the jury, describes a driver's duty to lookout for other
     vehicles, to keep his vehicle under control and to drive at a
     speed that is reasonable and prudent under the circumstances;
     as it was uncontroverted that appellant did not decrease his
     speed when water splashed on his windshield, the trial court
     did not err in concluding that a new trial was warranted on
     the basis that the negligence of the first driver, if any, was
     exceeded by the negligence of appellant;  the trial court did
     not abuse its discretion in granting a new trial.
           

     Appeal from Sebastian Circuit Court, Greenwood Division; John
Holland, Judge; affirmed.
     Pryor, Barry, Smith, Karber & Alford, by:  Ben T. Barry, for
appellant. 
     Jones, Jackson & Moll PLC, by:  Kendall B. Jones and J. Scott
Hardin, for appellee.

     Bradley D. Jesson, Chief Justice.April 15, 1996  *ADVREP1*






JAMES H. YOUNG,
                    APPELLANT,

V.

TAMMY LYNN HONEYCUTT,
                    APPELLEE,





95-1209


APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, GREENWOOD
DIVISION (CV94-140-G II)


HONORABLE JOHN HOLLAND
CIRCUIT JUDGE




AFFIRMED.


                  CHIEF JUSTICE BRADLEY JESSON


     The jury returned a defendant's verdict in this case involving
an automobile accident on a highway bridge.  The trial court
granted the plaintiff's motion for new trial, from which the
defendant appeals.  We affirm.  
     Shortly before 5:00 p.m. on June 3, 1994, appellee Tammy Lynn
Honeycutt was driving westbound on the Midland Avenue bridge from
Van Buren to Fort Smith.  Due to rainy conditions, she was
traveling under the 40 m.p.h. speed limit.  She could see with the
use of her windshield wipers, which were operating at normal speed. 
Honeycutt was in the right-hand lane when her car hydroplaned, slid
into the left lane, hit the concrete divider on the bridge, and
came to a stop.  She looked in her rear view mirror and saw a white
car pull up behind her and turn on its flashers.  Honeycutt then
activated her flashers so that the person behind her would know she
wanted to exit her car.  She had turned her car off and pulled up
the emergency brake when the white car behind her was rear-ended by
appellant James H. Young's truck, forcing the white car into hers. 
It was Honeycutt's testimony that Young apologized to her after the
accident, told her that he had not seen her, had not touched the
brake, and never slowed down.  Young explained to her that he was
trying to clear some water off his windshield that had splashed
over from the opposite side of the bridge.
     Officer David Thomas of the Fort Smith Police Department
investigated the accident.  Though it was raining on his way to the
scene, he stated he had no problem seeing while driving with the
aid of his windshield wipers.  He testified that the accident
occurred 500 feet from the crest of the bridge.  According to
Thomas, there was nothing obstructing Young's view from the crest
of the bridge to the stopped vehicles.  Young told Thomas that he
had been traveling in the left lane and that water had splashed
over the concrete barrier from the other lanes onto his windshield,
preventing him from seeing the vehicles stopped in front of him
until the collision occurred.  However, he told Thomas that he
continued at a steady speed and did not see any reason to slow
down.  While Thomas saw flashers on Honeycutt's vehicle, he did not
recall seeing flashers on the white car.  Because the rear end of
the white car was smashed, Thomas opined that the damage could have
caused the flashers not to operate.   
     Regarding damages, Honeycutt stated that while she was not
hurt in any manner from the initial contact she made with the
bridge, her head hit the seat-belt latch after the white car was
knocked into hers, causing her car to turn completely around.  She
described an "egg-size" knot on the back of her head, and stated
that her neck, back, and left collarbone were also hurting.  The
same evening of the accident, she went to the hospital, where she
underwent x-rays and was given muscle relaxers and pain pills. 
Three days later, Honeycutt was experiencing pain in both legs,
headaches, and soreness.  She was referred an orthopedic surgeon,
who diagnosed cervical and thoracic strain.  Honeycutt completed
approximately three weeks of physical therapy.  In her negligence
claim against Young, she sought damages for personal injuries, past
and future medical expenses, past and future mental anguish, and
lost income.  She prayed for $30,000, including $5,203.57 in
medical expenses and $208.84 for 23 hours of lost wages.  
     After the trial court denied Young's motion for directed
verdict, Young testified that it was raining very hard at the time
of the accident, and that he caught the hardest part of the rain on
the bridge.  He estimated his speed at 30 m.p.h. or slower because
of the weather.  It was Young's testimony that he got caught in the
inside lane because of traffic and could not change lanes. 
According to Young, he did not see anything or slow down before he
hit the white car, and he did not see any emergency flashers on the
white car or on Honeycutt's vehicle.
     At the close of all the evidence, various AMI instructions
were submitted to the jury, including the burden of proof for
damages based on negligence, proximate cause, the common law rules
of the road, and comparative negligence.  The jury returned a
unanimous verdict for Young, who appeals from the trial court's
granting of Honeycutt's motion for new trial.
     Young first contends that the trial judge's order granting the
new trial is deficient because it does not include a "finding" that
the jury's verdict was clearly contrary to the preponderance of the
evidence.  Before the Uniform Rules for Circuit and Chancery Court
were abolished in 1988, see In Re: Abolishment of the Uniform Rules
of Circuit and Chancery Courts, 294 Ark. 664, 742 S.W.2d 551
(1987), Rule 16 required judges to state, with particularity, the
specific reasons for their decision in their order granting the new
trial.  If they failed to do so, there was a presumption on appeal
that the jury's verdict was correct. See e.g., Stephens v,
Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987); Brant v. Sorrels,
293 Ark. 276, 737 S.W.2d 450 (1987).  There is no such requirement
present in Arkansas Rules of Civil Procedure; thus, Young's
argument is without merit.   
     Young next contends that the trial court abused its discretion
in granting a new trial because the jury's verdict was not clearly
against the preponderance of the evidence.  Rule 59(a)(6) of the
Arkansas Rules of Civil Procedure provides that a new trial may be
granted to all or any of the parties on all or part of the issues
on the application of the party aggrieved when the verdict or
decision is clearly against the preponderance of the evidence.  The
trial court has limited discretion in the matter, as it may not
substitute its view of the evidence for the jury's except when the
verdict is clearly against the preponderance of the evidence.
Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995); Richardson
v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994).  However, the
trial court may grant a new trial when a miscarriage of justice has
occurred.  Brant v. Sorrells, supra.  In reviewing the trial
court's granting of a motion for new trial, the test is whether the
judge abused his or her discretion. Bristow v. Flurry, supra;
Richardson v. Flanery, supra.   We have further described this
standard as requiring a showing of "clear" abuse, see Brant v.
Sorrells, supra; Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985), or "manifest" abuse by acting improvidently or
thoughtlessly without due consideration. See Dedman v. Porch, 293
Ark. 571, 739 S.W.2d 685 (1987); Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19
(1982).  A showing of abuse of discretion is more difficult when a
new trial has been granted because the party opposing the motion
will have another opportunity to prevail. Bristow v. Flurry, supra;
Richardson v. Flanery, supra.
     In Bristow v. Flurry, supra, defendant Bristow, a cab driver,
approached the intersection of Garrison and Ninth Street in Fort
Smith when his passenger, plaintiff Flurry, reached over the seat
to pay her fare and stated, "Here."  Bristow claimed that, when he
last looked, the light in the intersection ahead was green, so he
turned to collect the money from Flurry.  However, when he turned
back, he was in the intersection, at which point he saw a truck a
moment before colliding with it.  Bristow claimed the truck was
speeding.  The jury returned a verdict in Bristow's favor, but the
trial court granted Flurry's motion for new trial.  We affirmed,
noting that Bristow had conceded he was not paying attention to the
road as he entered the intersection prior to the collision.  
     We likewise affirmed the trial court's granting of a new trial
in Richardson v. Flanery, supra.  In that case, defendant
Richardson was driving her car on a feed-on lane, attempting to
access Highway 107.  She failed to yield and collided with the
Flanerys's car, which was traveling south on the highway.  The jury
returned a general verdict in Richardson's favor, but the trial
court granted the Flanerys's motion for new trial.  We held that
the trial court did not abuse its discretion in granting the new
trial because the overwhelming weight of the evidence was that
Richardson's failure to yield had been the cause of the accident. 
In so holding, we recognized that the only evidence tending to
disprove the allegations of negligence against Richardson was her
own testimony regarding the cause of the accident. 
    In Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), we
again affirmed the trial court's granting of a new trial. 
Defendant Turrise was the driver of a van that ran off the road,
overturned, and injured the plaintiff passengers.  The trial court
granted a new trial, finding that Turrise's testimony regarding
another vehicle causing him to run off the road was at variance
with the physical evidence and the testimony of independent
witnesses.  In affirming the trial court's decision, we observed
that the only evidence tending to excuse Turrise's failure to keep
the van on the road was his own sudden emergency testimony, and 
concluded that the physical evidence showed a course of conduct
contrary to that which an ordinary person would have undertaken
when confronted with such an emergency.  
     We recognize that in our decision Bristow v. Flurry, supra, we 
thought it significant that the jury was not instructed on
comparative fault.  While the jury was so instructed in the present
case, we cannot conclude that the trial court abused its discretion
in ordering a new trial.  By his own testimony, Young admitted he
never slowed down or applied his brakes before he hit the white
car.  This was so even though he "didn't see anything but water." 
Honeycutt and Thomas offered similar testimony.  Particularly,
Thomas testified that Young told him that after water splashed on
his windshield, he continued at "steady speed."  Moreover, there
was a distance of approximately 500 feet from the crest of bridge
to accident site.  According to Thomas, there was nothing
obstructing Young's view from the crest of the bridge to the
stopped vehicles.  Thus, we must conclude that this evidence
demonstrated a course of conduct contrary to that which an ordinary
person would have undertaken when confronted with such an
emergency.
     The trial court read AMI 901 to the jury, which describes a
driver's duty to lookout for other vehicles, to keep his vehicle
under control, and to drive at a speed that is reasonable and
prudent under the circumstances.  As it is uncontroverted that
Young did not decrease his speed when water splashed on his
windshield, we cannot agree that the trial court erred in
concluding that a new trial was warranted on the basis that the
negligence of Honeycutt, if any, was exceeded by the negligence of
Young.  It was also uncontroverted that Honeycutt sustained a
muscle strain and lost nearly a full day of work as a result of the
accident.  Under these circumstances, recognizing that Young will
have the opportunity to prevail at another trial, we hold that the
trial court did not abuse its discretion in granting a new trial.
     Affirmed.   
     Glaze, J., dissents.       





JAMES H. YOUNG,
                    APPELLANT,

V.

TAMMY LYNN HONEYCUTT,
                    APPELLEE.



95-1209

Opinion Delivered:  4-15-96






DISSENTING OPINION





                  TOM GLAZE, Asssociate Justice

     This court requires that before a trial court may substitute
its view of the evidence for that of the jury, the jury's verdict
must be clearly against the preponderance of the evidence. 
A.R.C.P. Rule 59(a)(6).  To determine whether the trial court
abused its discretion, it is helpful to examine the order granting
a new trial to determine the rationale for the trial court's
substitution of its view for that of twelve jurors.  Here, the
order reflects only that it was the trial court's opinion that the
negligence of Honeycutt, if any, was exceeded by the negligence of
Young, and that Honeycutt suffered damage as a result of the
automobile accident.  Without more explanation, it is impossible to
ascertain whether the trial court abused its discretion without
properly examining the evidence.  In reviewing the evidence and
instructions to the jury, I submit the record fails to support the
trial court's substituted and conflicting opinion that the jury's
verdict was clearly against the preponderance of the evidence. 
Therefore, I must dissent from the majority's opinion upholding the
trial court's ruling granting Honeycutt a new trial.
     The majority opinion recites evidence in support of the trial
court's finding that Mr. Young was a negligent participant in the
present case.  This dissent does not contest that there was
evidence whereby the judge or jury could have found Young
negligent.  However, the majority's analysis falls short in its
failure to recognize that there was evidence presented in the
present case whereby the jury could have concluded that Honeycutt
was equally, if not more, negligent than Young.
     Evidence of Honeycutt's negligence is found where she admitted
that she lost control of her vehicle when she hydroplaned across
two lanes of traffic and struck the concrete divider.  The majority
recites that Honeycutt testified that she was driving under the
speed limit, when in fact she testified that she was probably
driving under the speed limit because it was raining, but that she
did not look at her speedometer and was unsure as to whether she
was driving over or under the speed limit, only that she thought
she was driving more slowly than she would have been on a normal
day.  Regardless, it was uncontroverted that Honeycutt hydroplaned
into the concrete wall where her car came to rest.  From this
testimony alone, the jury could have concluded that Honeycutt was
negligent pursuant to AMI 901(B) and (C) for having failed to
maintain control of her car and driving at an unsafe speed.  The
judge also gave AMI 305(b), which instructed the jury that it was
the duty of both persons involved in the occurrence to use ordinary
care for the safety of others and their property.  Under this
instruction, the jury could also have found Honeycutt negligent
when she chose to leave her car stopped on the bridge, as
Honeycutt's own testimony included that her car was not rendered
immovable by either accident.  
     This court has reversed trial courts' granting of new trials
as an abuse of discretion when the jury had before it evidence of
a substantial or independent nature which, if accepted by the jury,
could support the verdict and which was at least the equivalent of
any countervailing evidence.  See Razorback Cab of Fort Smith, Inc.
v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993); Turrise v. Crane, 303
Ark. 576, 798 S.W.2d 684 (1990); Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989); Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30
(1988).  Such is the instance in the present case.  The majority
opinion cites cases where this court affirmed the lower court's
granting of a new trial, but these cases simply do not reflect the
type of evidence required to reverse.  
     For example, in Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894
(1995), the trial judge, unlike in the present case, gave no
comparative fault instruction to the jury.  There, the only
allegations of another's negligence was Bristow's own testimony. 
Moreover, Bristow conceded that he was not paying attention to the
road as he entered the intersection prior to the collision.  In
Richardson v. Flanery, 316  Ark. 310, 871 S.W.2d 589 (1994), no
independent evidence was presented to show that the defendant
Richardson was not solely at fault.  The Richardson court said, "We
recognized that the only evidence tending to disprove the
allegations of negligence against Richardson was her own testimony
regarding the cause of the accident."  Last, in Turrise, 303 Ark.
576, 798 S.W.2d 684, the only evidence tending to excuse Turrise's
failure to keep the van on the road was his own testimony of a
sudden emergency.  Testimony and physical evidence presented
showing Turrise was at fault, along with the lack of any
independent evidence beyond Turrise's own testimony to show that he
was not at fault gave rise to this court's determination that the
trial court was found not to have abused its discretion in granting
a new trial.  
     In my view, the cases relied upon by the majority opinion
involve proof that is considerably distinguishable from the
evidence before the jury in the present case.  Here, evidence of a
substantial and independent nature was presented to the jury, which
it accepted as evidence that Young and Honeycutt were at least
equally negligent.  For this reason, I would reverse the trial
court's decision, since I believe it erred in finding the jury's
verdict was clearly against the preponderance of the evidence.


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