Diamond State Towing Co., Inc. v. Cash

DIAMOND STATE TOWING COMPANY, Inc., and James
Ingram v. Lindel Kay CASH

95-1282                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 22, 1996


1.   New trial -- when new trial may be granted -- trial court's
     discretion limited. -- Arkansas Rule of Civil Procedure
     59(a)(6) 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
     or is contrary to the law; although the trial court is granted
     some discretion in the matter, that discretion is limited, and
     the trial court may not substitute its view of the evidence
     for the jury's except when the verdict is clearly against the
     preponderance of the evidence.

2.   New trial -- test on review. -- The test applied in reviewing
     the trial court's granting of the motion is whether the trial
     court abused its discretion; 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.

3.   New trial -- trial court did not abuse its discretion in
     granting of. -- Where appellant driver admitted that he saw
     the headlights from the first accident but took no action and
     further admitted that he saw appellee's taillights but did not
     realize they were not moving, the supreme court, under the
     circumstances, could not say that the trial court abused its
     discretion in granting a new trial on the basis that appellant
     driver failed to keep a proper lookout and that appellee's
     negligence, if any, did not equal or exceed that of appellant.


     Appeal from Ouachita Circuit Court; David F. Guthrie, Judge;
affirmed.
     Wood, Smith, Schnipper & Clay, by: Lynn Williams, for
appellants.
     Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., and
Phillip J. Foster, for appellee.

     Andree Layton Roaf, Justice.*ADVREP5*
April 22, 1996.







DIAMOND STATE TOWING COMPANY,
INC., AND JAMES INGRAM
                    APPELLANTS,

V.

LINDEL KAY CASH,
                    APPELLEE.



95-1282


APPEAL FROM THE OUACHITA COUNTY
CIRCUIT COURT,
NO. CIV-92-128-2,
HON. DAVID F. GUTHRIE, JUDGE,



AFFIRMED.


                       Andree Layton Roaf

     This case arises from an automobile collision.  Appellee
Lindel Kay Cash filed an action for personal injury against the
appellants, Diamond State Towing Company, Inc. (Diamond State
Towing), and James Ingram.  A jury returned a verdict in favor of
Diamond State Towing and Ingram.  Subsequently, Cash filed a motion
for new trial pursuant to ARCP Rule 59(a)(6), asserting that the
verdict was clearly contrary to the preponderance of the evidence;
the trial court granted the motion.  The sole issue on appeal is
whether the trial court abused its discretion in granting a new
trial.  We affirm.
     At approximately 4:30 a.m. on June 24, 1989, Lindel Cash was
traveling east on Interstate 30 east of Texarkana.  Ms. Cash
testified that she could see something in the road as she
approached an overpass; she was in the left lane.  Subsequently,
she recognized that there was an accident and stopped her car.  Ms.
Cash testified that she was sitting with her foot on the brake when
one of her passengers, Floyd Waites, yelled, "[H]e's going to hit
us."  Ms. Cash looked in the rear-view mirror and saw lights. 
James Ingram, a shareholder in Diamond State Towing, was driving a
1966 Hendrixson heavy-duty wrecker.  Mr. Ingram's vehicle struck
the rear of Ms. Cash's vehicle.
     Ingram testified that he was returning to Hope, Arkansas, from
Nash, Texas, where he had spent four or five hours pulling a truck
and trailer out of a ditch.  He testified that he was not sleepy,
had not been drinking any alcohol, and had taken no drugs other
than his blood pressure medication.  Ingram stated that he saw the
headlights flash from the first accident, thought it might have
been a lightning flash, and did not "hit the brakes or let off the
accelerator"; he kept going, then he saw taillights.  Ingram
testified that he "did not think much, then I got closer and
noticed the taillights were not moving."  When he realized that
Cash's car was stopped, Ingram slammed on his brakes.  Ingram also
testified that he was traveling fifty miles per hour, which he
thought was a reasonable speed.
     Ingram stated that there was a barricade on the left and a van
stopped on the right.  He testified that he was not tailgating the
Cash vehicle and the first time he saw her was when he "came on
her."  In addition, Ingram stated that he saw Cash's taillights,
but he did not see any hazard lights, signal lights, or brake
lights.  Ingram further testified that no one else hit anyone, but
the driver of the eighteen wheel truck behind Ingram stated "it was
a miracle he got it stopped" without hitting Ingram.
     Corporal Robert Lavender of the Arkansas State Police
testified that a one car accident occurred at the apex of the
overpass.  He stated that the vehicle swerved and hit the concrete
wall; the left lane of the interstate was completely blocked and
part of the outside lane was blocked.  Corporal Lavender testified
that the accident involving Ms. Cash occurred within 100 yards of
the single vehicle accident.  Lavender stated that there was
aluminum railing on the shoulder of the highway and there was not
enough room for Ingram to pass on the right of Ms. Cash's vehicle. 
Lavender testified that "failed to yield" was marked on the
accident report, but he meant following to closely.  In addition,
Lavender testified that there was a 282-foot skid mark from the
left front of the wrecker; he did not find any skid marks which led
from Ms. Cash's vehicle.  Finally, Lavender stated that it was not
normal for a car to come to a complete stop on the interstate.
     Floyd Waites, Ms. Cash's son-in-law, testified that Ms. Cash
took a quarter- to a half-mile to brake easily, and she stopped
without skidding or losing control.  He testified that Ingram's
wrecker struck the Cash vehicle approximately 15 to 20 seconds
later.
     The jury returned a verdict in favor of the defendants;
however, the trial court concluded the verdict was against the
clear preponderance of the evidence and granted a new trial.  In
making its ruling, the trial court observed that the key testimony
was that of Mr. Ingram.  Ingram stated the first thing that he saw
was "white lights" flashing; he thought it was when the first car
hit the bridge.  Ingram testified that "I got a glimpse of
something up there, you know, a flash and I figured that's what it
was."  Ingram stated that he did not slow down; he testified that
he "kept going and then I seen some taillights and I didn't think
nothing much of it right then and then as I got closer I noticed
the taillights wasn't moving."
     The trial court found that Ingram could not take evasive
action to the right because of another vehicle nor could he take
evasive action to the left because of the barricade.  However, the
trial judge also recognized that Ms. Cash was confined to the lane
in which she had stopped.  The trial court concluded the issue was
whether Ingram was negligent in not recognizing the danger earlier. 
The trial court stated that Ingram was put on notice by the flash
of lights, which he thought were from an accident, but he did not
slow down.  Further, the trial court concluded Ingram's inability
to keep a proper lookout may have been affected by his long workday
without any sleep.  The trial judge also found Ms. Cash was not
negligent.  He stated that Ms. Cash's failure to activate her
hazard lights was of little consequence; Ms. Cash's brake lights
would have been clearly visible to following traffic.
     Appellants, Diamond State Towing and James Ingram, bring this
appeal from the trial court's order granting Cash's motion for a
new trial.  Arkansas Rule of Civil Procedure 59(a)(6) 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 or is contrary to the law.  Bristow v. Flurry, 320 Ark.
51, 894 S.W.2d 894 (1995).  Although the trial court is granted
some discretion in the matter, that discretion is limited, and the
trial court may not substitute its view of the evidence for the
jury's except when the verdict is clearly against the preponderance
of the evidence.  Id.;  Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994).  The test we apply in reviewing the trial
court's granting of the motion is whether the trial court abused
its discretion.  Bristow, supra.  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. 
Id.
     On appeal, the appellants cite three cases in which this Court
has found an abuse of discretion where a trial court granted a new
trial, Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445,
856 S.W.2d 2 (1993), Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466,
(1989), Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988), and
three cases in which this Court has upheld the trial court's
decision granting a new trial, Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990). 
In addition, the appellants note that the jury was instructed in
accordance with AMI Civil 3rd, 2102 (1989)(comparative negligence),
AMI Civil 3rd, 603 (1989)(occurrence of accident is not, of itself,
evidence of negligence), AMI Civil 3rd, 614 (1989)(sudden
emergency), and AMI Civil 3rd, 902 (1989)(superior right of forward
vehicle does not relieve driver of forward vehicle of the duty to
use ordinary care).  The appellants submit that in considering the
facts in the record and the jury instructions, it is apparent that
the trial court abused its discretion and entered into the province
of the jury.  The appellants, however, do not contest that Ms. Cash
sustained an injury; they simply appeal the trial court's decision
regarding the issue of negligence.
     The appellants first submit that the trial court invaded the
province of the jury regarding whether Ingram should have perceived
the danger of the first accident.  The appellants submit Ingram saw
a swirl of light that he initially believed to be lightening;
therefore, there was no danger for him to perceive.  Second, the
appellants contend that the trial court invaded the province of the
jury on the issue of keeping a proper lookout.  On this point, the
appellants submit there was no evidence that Ingram was fatigued. 
Next, the appellants contend that the trial court invaded the
province of the jury in concluding that Cash's negligence did not
equal or exceed the negligence of Ingram.  The appellants submit
that Ingram specifically stated he saw taillights, but not brake
lights, and it is for the jury to determine the credibility of the
witnesses.  Finally, the appellants submit the trial court ignored
the fact that the sudden emergency instruction was given and it was
for the jury to decide whether Cash should have activated her
hazard lights.
     In the instant case, the jury was instructed regarding the
duty to keep a proper lookout that a reasonably careful driver
would keep under circumstances similar to those shown by the
evidence, the duty to keep a vehicle under control, and the duty to
drive at a speed no greater than is reasonable and prudent under
the circumstances.  See AMI Civil 3rd, 901 (1989).  Ingram admits
he was traveling fifty miles per hour and his wrecker struck the
rear of Ms. Cash's vehicle.  By his own testimony, Ingram saw the
headlights from the first accident, but he did not do anything; he
kept going, then he saw taillights.
     The appellants find it significant that Ingram never saw Ms.
Cash's brake lights and that cars are not normally stopped on the
interstate.  Ingram, however, testified that he saw the lights from
the first accident and Ms. Cash's taillights; he just did not
realize the taillights were not moving.  In addition, the driver of
the truck behind Mr. Ingram was able to stop, and no other
accidents occurred.
     In Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), we
upheld the trial court's granting of a motion for new trial where
the defendant, by his own testimony, conceded he was not paying
attention to the road as he entered the intersection prior to the
collision.  We noted that the only significant testimony favoring
the defendants came as a result of the testimony of one of the
defendants.  Similarly, in the instant case, Ingram testified he
saw the headlights from the first accident but he did not take any
precautionary measures.
     In Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994),
Richardson was traveling in a feed-on lane to the highway and the
Flanerys were traveling on the highway.  According to her
testimony, Ms. Richardson looked, but when she did not see anyone
on the highway, she proceeded forward.  Ms. Richardson's car
collided with the car driven by Mr. Flanery.  The Flanerys filed an
action against Ms. Richardson, but the jury returned a verdict in
favor of Ms. Richardson.  We held that the trial court did not
abuse its discretion in granting the Flanerys's motion for new
trial because the overwhelming weight of evidence was that Ms.
Richardson had negligently caused the accident.  We noted that it
was unrefuted that the Flanerys had the right-of-way when the
accident occurred.  Similarly, it is undisputed that Ms. Cash had
the superior right as the forward vehicle.
     In Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), this
Court also upheld a trial court's granting of a new trial.  Mr.
Turrise was the driver of a van that was involved in a one vehicle
accident.  The passengers filed an action against Mr. Turrise; the
jury returned a verdict in favor of the defendant.  Mr. Turrise
testified that a blue car shot out in front of him which caused him
to drive off the road.  In affirming the granting of a new trial,
this Court noted that the only evidence tending to excuse Turrise's
failure to keep the van on the road was his sudden emergency
testimony.  This Court also noted 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.  In the
instant case, the physical evidence also shows a course of conduct
contrary to that which an ordinary person would have undertaken
when confronted with such an emergency.  Ingram admits that he did
not take any action after observing the lights from the initial
accident.
     Granted, the jury was instructed that a person who is suddenly
and unexpectedly confronted with danger is required to use only the
care that a reasonably careful person would use in the same
situation.  See AMI Civil 3rd, 614 (1989).  Further, the jury was
instructed on comparative fault.  See AMI Civil 3rd, 2102 (1989). 
However, Ingram admitted he saw the headlights from the first
accident and took no action.  He further admitted that he saw Ms.
Cash's taillights, but he did not realize they were not moving. 
Under these circumstances, we cannot say that the trial court
abused its discretion in granting a new trial on the basis that
Ingram failed to keep a proper lookout and that Ms. Cash's
negligence, if any, did not equal or exceed that of Ingram.
     Affirmed.
     Glaze and Dudley, JJ., dissent.*ADVREP5-A*





DIAMOND STATE TOWING COMPANY,
INC., AND JAMES INGRAM,
                    APPELLANTS,

V.

LINDEL KAY CASH,
                    APPELLEE.



95-1282

Opinion Delivered:  4-22-96







DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     Once again, this court has affirmed the lower court's
substitution of its opinion for that of the jury.  The jury's
verdict was clearly supported by substantial evidence, and cannot
be said to be against the clear preponderance of the evidence.
     Here, the trial court granted a new trial, finding that the
plaintiff, Cash, was not negligent.  However, Cash's witness
testified that Cash was at a standstill on the interstate for as
long as twenty (20) seconds without her engaging her emergency
flasher.  By Cash's own admission, she never took any evasive
action nor did she look behind her to observe the possibility of
any oncoming traffic.  Defendant Ingram testified that he only saw
Cash's taillights, an indication that Cash failed the most minimum
task of warning others by depressing her brake pedal.  Clearly,
evidence was introduced to the jury from which a reasonable
inference of Cash's negligence could have been derived.
     Evidence was also introduced to the jury that Ingram was not
negligent.  It was dark and early in the morning at the time of the
collision.  Ingram testified that when he saw a flash of light
ahead, he thought it was lightning.  In retrospect, the lights he
saw were the headlights flashing from the first accident.  Seeing
only taillights of a car ahead and witnessing no accident, Ingram
believed he had no reason to apply his brakes.  Once Ingram
determined the taillights (of Cash's car) were stationary, he
applied his brakes on his tow truck, skidding 282 feet.  Ingram
testified he was on I-30 driving fifty miles per hour.  From this
evidence, the jury reasonably concluded that Ingram had kept a
proper lookout and was not negligent in applying his brakes at the
time he first became aware that Cash's car was stopped on the
overpass and Ingram was unable to pass to the left because of a
guardrail or to the right because of traffic.  
     Clearly, among all the evidence introduced, the jury
considered both evidence of Cash's negligence and of Ingram's lack
of negligence.  In light of the comparative fault instruction
given, the jury could have reasonably concluded that Cash was
equally, if not more, negligent than Ingram.  
     Nonetheless, the trial court expressed an opinion that
Ingram's "inability to maintain a proper lookout may have been
affected by his long workday without a nap which caused him to be
tired."  The court's opinion exemplifies its abuse of discretion in
donning the hat of the factfinder and substituting its opinion for
that of the jury.   In my view, the trial court erred by
substituting its opinion for that of the jury and finding that the
verdict was clearly against the preponderance of the evidence.  Cf.
Young v. Honeycutt, 324 Ark. ___, ___ S.W.2d ___ (April 15, 1996)
(Glaze, J., dissenting); Turrise v. State, 303 Ark. 576, 798 S.W.2d 684 (1990) (Dudley, Glaze, and Turner, JJ., dissenting).
     For the foregoing reasons, I respectfully dissent.
     DUDLEY, J., joins this dissent.