Anselmo v. Tuck

Jerry ANSLEMO v. Charles TUCK

96-156                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 1, 1996


1.   Judgment -- when judgment notwithstanding verdict may be
     entered -- factors on review on appeal from denial of
     judgment. -- A trial court may enter a judgment
     notwithstanding the verdict only if there is no substantial
     evidence to support the verdict and the moving party is
     entitled to a judgment as a matter of law; the trial court may
     not substitute its view of the case for that of the jury, and
     the jury's verdict must be clearly against the preponderance
     of the evidence in order to be set aside; on appeal from a
     denial of judgment notwithstanding the verdict, the supreme
     court reviews the evidence and all reasonable inferences
     arising therefrom in the light most favorable to the party on
     whose behalf judgment was entered; whether there is
     substantial evidence to support the jury's verdict is the
     standard of review for the denial of judgment notwithstanding
     the verdict.  
2.   Evidence -- substantial evidence defined -- determination as
     to sufficiency of the evidence on review. -- Substantial
     evidence is that evidence which is beyond mere suspicion or
     conjecture and which is of sufficient force and character that
     it will, with reasonable and material certainty and precision,
     compel a conclusion of the matter one way or another; in
     considering sufficiency of the evidence on appeal, the
     appellate court will only consider evidence favorable to the
     appellee together with all its reasonable inferences; in
     reviewing the evidence, the weight and value to be given the
     testimony of the witnesses lies within the exclusive province
     of the jury.

3.   Negligence -- burden of proof upon assertion of -- proof
     necessary to make prima facie case of negligence. -- The
     burden of proof is always on the party asserting negligence,
     and negligence is never presumed; to make a prima facie case
     of negligence, a plaintiff must prove that he sustained
     damages, that the defendant was negligent, and that such
     negligence was the proximate cause of the damages. 

4.   Negligence -- proximate cause defined -- when proximate cause
     becomes a question of law. -- Proximate cause is "that which
     in a natural and continuous sequence, unbroken by any
     efficient intervening cause, produces the injury, and without
     which the result would not have occurred"; proximate cause is
     generally a question for the jury, becoming a question of law
     only if reasonable minds could not differ.

5.   Judgment -- appellant failed to meet his burden of proof
     concerning proximate cause -- trial court did not err in
     denying appellant's motion for judgment notwithstanding the
     verdict. -- Based on the testimony at trial, reasonable minds
     could easily have differed as to whether the appellee's
     actions caused appellant's injuries and, furthermore, as to
     whether the injuries even arose during the accident;
     appellant's entire claim that he suffered injuries from the
     impact of what was revealed to be a minor accident was based
     solely on his testimony and credibility; it is within the
     province of the jury to determine the weight and value of the
     witnesses' testimony; the court will not attempt to second
     guess its determinations; based on all of the testimony heard
     by the jury, its verdict was not based on mere suspicion or
     conjecture; because appellant did not meet his burden of proof
     concerning the proximate cause of his injuries, there was
     substantial evidence to support the verdict in favor of the
     appellee; the trial court did not err in denying appellant's
     motion for judgment notwithstanding the verdict.  


     Appeal from Washington Circuit Court, Second division; Kim M.
Smith, Judge; affirmed.
     Q. Byrum Hurst Law Offices, by:  Q. Byrum Hurst, Jr., for
appellant.
     W. Paul Blume, for appellee.

     Donald L. Corbin, Justice.
     Associate Justice Donald L.
Corbin, 7-1-96   *ADVREP*SC4*





JERRY ANSELMO,
                    APPELLANT,

V.

CHARLES TUCK,
                    APPELLEE,



96-156



APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT, SECOND
DIVISION,
NO. CIV 93-541,
HON. KIM M. SMITH, JUDGE,



AFFIRMED.





     Appellant, Jerry Anselmo, appeals the jury's verdict in favor
of appellee, Charles Tuck, from the Washington County Circuit
Court.  Because this case involves a question concerning the law of
torts, this court has jurisdiction of the appeal pursuant to Ark.
Sup. Ct. R. 1-2(a)(16).  In support of his appeal, Anselmo argues
that the jury's verdict is not supported by substantial evidence
and that the trial court erred in denying his motion for judgment
notwithstanding the verdict.  Because we find no merit to either
argument, we affirm.
                              FACTS
     This cause of action arose out of a traffic accident which
occurred on September 28, 1992, in Fayetteville, Arkansas, in which
a school bus driven by appellee Tuck struck the front of a car
driven by Dennis Little as the bus was attempting to negotiate a
left turn.  Photographs revealed that the accident was relatively
minor, and that the damage was confined to the front end of the
driver's side of the car.  Appellant Anselmo was a passenger in
Little's car.  Testimony from both sides agreed on the basic facts
of the accident, differing only on the exact location of Little's
car and whether the accident was the proximate cause of Anselmo's
injuries.  Anselmo and Little testified that the car was behind the
stop sign at the intersection, while Tuck testified that the car
was sitting beyond the stop sign, just inside the intersection,
when the impact occurred.  Anselmo testified that he suffered neck
and foot injuries as a result of the impact of the accident.  The
proximate cause of Anselmo's injuries was hotly contested at trial. 
     The officer at the scene of the accident testified that
immediately upon reaching the scene of the accident he inquired
whether anyone had been hurt, and that no one involved indicated
any injury.  The officer further stated that he did not observe
Anselmo limping in any way.    
     Dennis Little testified that he observed Anselmo limping "a
little bit" at the accident scene, and that Anselmo said he hit his
foot and that it hurt.  Little further testified that because
Anselmo was concerned about whether they could drive the car away
from the scene, Anselmo took it upon himself to walk one and a half
to two blocks to retrieve his car.  Testimony later revealed that
Little's car was in fact driven away from the scene.  No evidence
was elicited from Little concerning the condition of Anselmo's neck
at the accident scene.  Little stated that it would cost
approximately $3,000.00 to repair the damage to the car, but that
a custom paint job was included in the price.
     Anselmo testified that the impact of the accident was "pretty
big," and that as a result, he was thrown into the dash.  Anselmo
stated that it was the combination of being thrown into the car's
dash and bracing himself with his foot that caused him to jam his
toe on the car's dash.  Anselmo admitted that he did not think much
about the injury at the time, and that he was not "hugely limping"
at the scene.  Anselmo stated that the next morning his neck felt
stiff and he had trouble turning his head either direction. 
Anselmo stated that he saw several physicians concerning his neck
injury, and that he had been prescribed physical therapy and some
pain medication.  Anselmo stated that because of the injury to his
foot he had an operation which left him immobile and required six
weeks of recovery.  Anselmo testified that sometime after the
accident and his various medical treatments he began experiencing
pain in his left arm, his left eye, his groin area, and the small
of his back.  He concluded his testimony by listing all the
activities (such as hiking, jogging, and cycling) he used to be
able to engage in before the accident, and indicated that he could
no longer enjoy these recreations.   
     On cross-examination, Anselmo admitted that he had not
actually been thrown into the dash on impact, but that he was
thrown forward and his foot hit the dash.  Anselmo stated that he
had not been wearing his seat belt at the time of the accident. 
Anselmo also conceded that there was no damage to the right side of
the car, the side where he was seated.
     Two doctors testified (via depositions) on behalf of Anselmo. 
Dr. Paul Doty, an orthopedic surgeon, testified that he treated
Anselmo for neck pain.  Dr. Doty stated that he diagnosed Anselmo
as having a musculoligamentous injury of the neck, which meant that
there was no fracture to the bone.  Dr. Doty stated that there is
rarely any objective manner to verify this type of injury, but that
an x-ray would show some separation of bones if the ligament injury
is so severe to cause spinal instability.  Dr. Doty testified that
that type of severe injury was not present in Anselmo.  Dr. Doty
admitted on cross-examination that his diagnosis of Anselmo's
injury was based upon Anselmo's subjective claims of pain and the
patient history taken from Anselmo.       
     Dr. Steven Watson, a podiatrist, testified that when he first
examined Anselmo, he was complaining of pain in his left foot in
the heel and forefoot area.  Dr. Watson stated that an x-ray of
Anselmo's foot revealed some degenerative arthritic changes of the
joint of the first metatarsal, some osteophytes in and around the
joint, as well as a loose piece in and around the joint. 
Dr. Watson initially prescribed a treatment consisting of
injections of anti-inflammatory medication, contrast soaks,
elevation of the foot, no physical activity, and jogging shoes for
support.  In January 1994, Dr. Watson discussed with Anselmo an
elective surgical procedure for his foot.  Dr. Watson stated that
Anselmo elected to undergo surgery, and that the surgery was
performed in February 1994.  Dr. Watson stated that Anselmo's
injuries were not caused by the trauma of the traffic accident, but
that the trauma had aggravated the arthritic joint.  
     On cross-examination, Dr. Watson conceded that the only
indication he had of a trauma caused by the traffic accident in
question was from Anselmo himself.  Dr. Watson stated that the
problems he diagnosed in Anselmo's joint are not conditions which
occur within a short period of time, and that activity such as
running or jogging is particularly harmful to that joint. 
Dr. Watson stated that the conditions of Anselmo's joint could not
have occurred in the short time since the traffic accident.  
     Before resting his case, Anselmo presented testimony from
three additional lay witnesses, none of which had any first-hand
knowledge of the accident or the cause of Anselmo's injuries.  The
defense called only one witness--appellee Charles Tuck.  Tuck
testified that immediately after the accident occurred, he stopped
the bus and checked to see if anyone was hurt.  Tuck stated that he
talked to Anselmo and that Anselmo stated he did not think he was
hurt.  Tuck stated that he observed Anselmo walking around at the
scene and that Anselmo did not appear to have a limp.
  SUBSTANTIAL EVIDENCE / JUDGMENT NOTWITHSTANDING THE VERDICT 
     Anselmo argues that there was not substantial evidence to
support the verdict, and that the trial court erred in denying his
motion for judgment notwithstanding the verdict.  In support of his
arguments, Anselmo asserts the evidence showed that he and Little
did nothing to contribute to the accident and that Tuck's improper
left turn resulted in the bus striking Little's car in the car's
own lane of travel.  While this supposition may be true, Anselmo
fails to argue or otherwise demonstrate that Tuck's actions on that
date were the proximate cause of his injuries.  Because there was
substantial evidence to support the jury's verdict in favor of
Tuck, we conclude that the trial court did not err in denying
judgment notwithstanding the verdict.  
     This court has consistently held that a trial court may enter
a judgment notwithstanding the verdict only if there is no
substantial evidence to support the verdict and the moving party is
entitled to a judgment as a matter of law.  See, e.g., Dr. Pepper
Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992); Dedman
v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987).  The trial court may
not substitute its view of the case for that of the jury, and the
jury's verdict must be clearly against the preponderance of the
evidence in order to be set aside.  McLaughlin v. Cox, 324 Ark.
361, ___ S.W.2d ___ (1996).  On appeal from a denial of judgment
notwithstanding the verdict, this court reviews the evidence and
all reasonable inferences arising therefrom in the light most
favorable to the party on whose behalf judgment was entered. 
Dr. Pepper Bottling Co., 311 Ark. 136, 842 S.W.2d 37.  Whether
there is substantial evidence to support the jury's verdict is the
standard of review for the denial of judgment notwithstanding the
verdict.  Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).  
     Substantial evidence is that evidence which is beyond mere
suspicion or conjecture and which is of sufficient force and
character that it will, with reasonable and material certainty and
precision, compel a conclusion of the matter one way or another. 
Williams v. O'Neal Ford, Inc., 282 Ark. 362, 668 S.W.2d 545 (1984). 
In considering sufficiency of the evidence on appeal, we will only
consider evidence favorable to the appellee together with all its
reasonable inferences.  Dedman, 293 Ark. 571, 739 S.W.2d 685.  In
reviewing the evidence, the weight and value to be given the
testimony of the witnesses lies within the exclusive province of
the jury.  Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).  
     In the present case, Anselmo's complaint alleged a cause of
action against Tuck for negligence.  The burden of proof is always
on the party asserting negligence, and negligence is never
presumed.  Morehart v. Dillard Dep't Stores, 322 Ark. 290, 908 S.W.2d 331 (1995).  To make a prima facie case of negligence, a
plaintiff must prove that he sustained damages, that the defendant
was negligent, and that such negligence was the proximate cause of
the damages.  Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728
(1996); Morehart, 322 Ark. 290, 908 S.W.2d 331.  It is the third
prong of this test that is at issue here, as Anselmo's proof as to
proximate cause of his injuries was tenuous at best.
     We have defined proximate cause as "that which in a natural
and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred."  Craig v. Traylor, 323 Ark. 363, 370, 915 S.W.2d 257, 260 (1996), (quoting Williams v. Mozark Fire Extinguisher Co.,
318 Ark. 792, 796, 888 S.W.2d 303, 305 (1994)).  Proximate cause is
generally a question for the jury, becoming a question of law only
if reasonable minds could not differ.  Craig, 323 Ark. 363, 915 S.W.2d 257.  Based on the testimony at trial, reasonable minds
could easily differ as to whether Tuck's actions caused Anselmo's
injuries and, furthermore, as to whether the injuries even arose
during the accident.   
     The officer who investigated the accident stated that Anselmo
did not indicate to him that he was injured and that he did not see
Anselmo limping at the scene.  Little, Anselmo's friend, stated
that Anselmo was limping a little, but that Anselmo volunteered to
walk nearly two blocks to retrieve his own car, even though the
testimony revealed that there was no reason why Little's car could
not be driven from the scene.  Anselmo's own expert medical
witnesses could not say that the injuries to his neck and foot were
the result of the accident.  In fact, Dr. Doty stated that his
diagnosis of Anselmo's neck injury was entirely subjective, based
only on Anselmo's claims of pain.  Dr. Watson similarly testified
that as far as an aggravation of the degenerative arthritis in
Anselmo's foot was concerned, he had only Anselmo's word that the
condition was aggravated by a trauma such as the impact of an
automobile accident.  Dr. Watson did state with certainty, however,
that Anselmo's foot condition could not have been caused by any
accident and that the surgery he underwent was an elective
procedure.  
     In short, Anselmo's entire claim that he suffered injuries
from the impact of what was revealed to be a minor accident was
based solely on his testimony and credibility.  As it is within the
province of the jury to determine the weight and value of the
witnesses' testimony, Rathbun, 315 Ark. 264, 866 S.W.2d 403 (1993),
we will not attempt to second guess its determinations.  Suffice it
to say that based on all of the testimony heard by the jury, we
cannot say that its verdict was based on mere suspicion or
conjecture.  Because Anselmo did not meet his burden of proof
concerning the proximate cause of his injuries, we conclude there
was substantial evidence to support the verdict in favor of the
appellee Tuck.  For that reason we hold that the trial court did
not err in denying Anselmo's motion for judgment notwithstanding
the verdict.  
     Affirmed.    
     DUDLEY, J., not participating.