Patricia Anderson and Nina Kelly v. Herbert Graham, Roger Raney and W. A. Raney d/b/a R & W Trucking Company, a Partnership

Patricia ANDERSON and Nina Kelly v. Herbert
GRAHAM, Roger Raney, and W.A. Raney d/b/a 
R & W Trucking Company, a Partnership

97-58                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 9, 1998


1.   Negligence -- burden on plaintiff to establish entitlement to directed
     verdict unless no rational basis for jury to believe otherwise. -- No
     matter how strong the evidence of a party who has the burden
     of establishing negligence and proximate cause as facts may
     comparatively seem to be, he is not entitled to have those
     facts declared to have reality as a matter of law, unless
     there is utterly no rational basis in the situation,
     testimonially, circumstantially, or inferentially, for a jury
     to believe otherwise.

2.   Trial -- defendant entitled to have jury assess credibility of plaintiff's
     case. -- The defendant is entitled to have the jury assess the
     credibility of the plaintiff's case even though the defendant
     offers no evidence himself; the jury may believe or disbelieve
     the plaintiff's witnesses irrespective of the fact that the
     evidence is uncontradicted and unimpeached.

3.   Evidence -- sufficiency of -- standard of review. -- Where sufficiency
     of the evidence is the issue on appeal, the standard of review
     is whether the verdict is supported by substantial evidence.

4.   Trial -- defendant under no obligation to present evidence contradicting
     plaintiff's case. -- The defendant is under no obligation to
     present any evidence contradicting the plaintiff's case; in
     appeals from a verdict for the defendant, the substantial-
     evidence rule cannot always be read literally, as the
     defendant may have introduced little or no proof, yet the jury
     found against the plaintiff; it makes little sense in such
     cases for the appellant to argue the strict application of the
     rule, insisting that a reversal is required because the
     defendant's proof failed to meet the substantial-evidence
     test, where the evident fact is that the plaintiff failed to
     convince the jury, or factfinder, of an essential element of
     proof.

5.   Evidence -- sufficient evidence to support jury verdict that appellee acted
     reasonably under circumstances. -- Where the appellate court
     discerned no admission of negligence on appellee's part in his
     explanation of the circumstances surrounding a vehicular
     accident; where appellee maintained that he did everything he
     could to avoid the accident; where there was evidence that the
     hill and the intersection were dangerous and that a driver
     using ordinary care could find himself unable to stop in time
     to avoid a car stopped at the intersection; and where one
     appellant said to the other while halted at the intersection
     that it was "a bad place to have to stop," there was evidence
     to support a jury verdict that appellee acted reasonably under
     the circumstances.

6.   Motions -- directed verdict -- denial of -- standard of review. -- The
     standard of review with respect to the denial of a plaintiff's
     motion for directed verdict is whether the defendant's case
     was utterly without a rational basis.

7.   Motions -- directed verdict -- new trial -- trial court did not err in
     denying either. -- Concluding that appellees' case was not
     utterly without a rational basis and that, regarding the
     denial of the new-trial motion, there was substantial evidence
     to support the jury verdict, giving the verdict the benefit of
     all reasonable inferences permissible under the proof, the
     supreme court held that the trial court did not err in denying
     either the motion for a directed verdict or for a new trial.


     Appeal from Lafayette Circuit Court; Phillip Purifoy, Judge;
affirmed.
     Stephen T. Arnold, for appellants.
     Dunn, Nutter, Morgan & Shaw, by: W. David Carter and Christie
G. Adams, for appellees.

     Robert L. Brown, Justice.
     Appellants Patricia Anderson and Nina Kelly appeal from the
denial of a motion for a directed verdict and denial of a motion
for a new trial.  They urge that each ruling constituted error by
the trial court.  We disagree on both counts and affirm.
     On September 14, 1992, Anderson and Kelly were the driver and
passenger, respectively, in a station wagon and had come to a stop
on Highway 82, a two-lane road in Stamps.  The reason for their
stop was that the vehicle in front of them had come to a halt to
make a left-hand turn at an intersecting street.  While they were
stopped, their car was hit from behind by appellee Herbert Graham,
who was driving an 80,000 pound tractor-trailer rig owned by
appellees Roger Raney and W.A. Raney d/b/a R & W Trucking Company,
a partnership (Raney).  Graham had just crested a small hill and
was unable to stop in time to avoid the accident.  Following the
accident, both Anderson and Kelly were taken to the Magnolia
Hospital and treated in the emergency room.
     Anderson and Kelly subsequently filed suit against Graham and
Raney for negligence and asked for damages of $250,000 and
$1,343,978, respectively.  A three-day jury trial followed in which
Anderson and Kelly called Graham as an adverse witness as part of
their case-in-chief.  After they rested, they moved the court for
a directed verdict on the basis that Graham had admitted negligence
and, thus, the trial court should direct the jury to enter a
verdict in their favor as a matter of law.  The trial court
declined to do so.  Much of the plaintiffs' case and the defense
case consisted of medical records and deposition testimony of
doctors regarding the physical condition of Anderson and Kelly. 
Graham and Raney presented medical evidence of accidents after the
1992 accident at issue where Kelly had suffered injuries similar to
those complained of in this case.  On cross-examination of
Anderson, they also brought out that she was involved in a 1994
accident in which she injured herself in some of the same areas
complained of in the present matter.
     Following the verdict and entry of judgment, Anderson and
Kelly moved for a new trial, claiming that the jury verdict was
against the great weight and preponderance of the evidence.  In
making their motion, Anderson and Kelly repeated that Graham had
essentially admitted both his negligence and the fact that the
accident was the proximate cause of their injuries.  The new-trial
motion was denied.  Anderson and Kelly now claim on appeal that it
was error for the trial court to deny both motions.
     We first consider the claim by Anderson and Kelly that it was
error to deny their directed-verdict motion.  We initially address
the uniqueness of such a motion.  In Morton v. American. Med.
Int'l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985), we stated: "[w]e
are not aware of any Arkansas case in which a verdict for the party
not having the burden of proof has been set aside in a negligence
case solely because it was not supported by substantial evidence." 
The same still holds true.
     In Morton, this court fully explained the difficulty of a
plaintiff's appeal from a denial of a directed-verdict motion: 
          The argument now made is presented so rarely that it
     seldom finds its way into the books. We did consider it
     in Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962).
     There the plaintiff, having lost below, argued that there
     was no substantial evidence to support the verdict and
     that (as it would logically follow) a verdict should have
     been directed for the plaintiff. In rejecting that
     argument we quoted with approval this language from
     United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958):
               Thus, no matter how strong the evidence of a
          party, who has the burden of establishing
          negligence and proximate cause as facts, may
          comparatively seem to be, he is not entitled to
          have those facts declared to have reality as a
          matter of law, unless there is utterly no rational
          basis in the situation, testimonially,
          circumstantially, or inferentially, for a jury to
          believe otherwise.
Morton, 286 Ark. at 90, 689 S.W.2d  at 536.  See also Young v.
Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993).  We then went forward
in Morton and stated the common-law rule as expressed in Cluck v.
Abe, 328 Mo. 81, 40 S.W.2d 558 (1931), that the defendant is
entitled to have the jury assess the credibility of the plaintiff's
case even though the defendant offers no evidence himself.  The
jury may believe or disbelieve the plaintiff's witnesses
irrespective of the fact that the evidence is uncontradicted and
unimpeached.  Morton, 286 Ark. at 90, 689 S.W.2d  at 536.
     On the same day that our opinion in the Morton case was handed
down, this court delivered its opinion in Schaeffer v. McGhee, 286
Ark. 113, 689 S.W.2d 537 (1985).  In Schaeffer, the plaintiff
appealed from a jury verdict in favor of the defendant, under facts
similar to those in the case before us, and from the denial of a
motion for a new trial.  The plaintiff argued that there was no
evidence to support the jury's verdict in favor of the defendant
because plaintiff's vehicle had been struck from behind by the
defendant's vehicle while stopped in traffic.  This court observed
that the fact plaintiff's vehicle was struck from the rear did not
raise a presumption of negligence and that the jury's verdict could
very easily have been attributed to the fact that the road at the
time of the accident was glazed with ice and snow.  We noted that
where sufficiency of the evidence is the issue on appeal, our
standard of review is whether the verdict is supported by
substantial evidence.
     We also affirmed in Schaeffer the notion that the defendant is
under no obligation to present any evidence contradicting the
plaintiff's case.  We stated:
     Obviously in appeals from a verdict for the defendant the
     rule [of substantial evidence] cannot always be read
     literally, as the defendant may have introduced little or
     no proof, yet the jury found against the plaintiff.  It
     makes little sense in such cases for the appellant to
     argue the strict application of the rule, insisting that
     a reversal is required because the defendant's proof
     failed to meet the substantial evidence test.  The
     evident fact is the plaintiff failed to convince the
     jury, or fact finder, of an essential element of proof. 
     That seems to have been the case with this jury, it
     simply did not think the defendant was negligent, or that
     the plaintiff's injuries were proximately caused by the
     negligence, if any.  Thus, the lack of substance is not
     with the defendant's proof, but with the plaintiff's. 
     See Morton v. American Medical International, Inc., 286
     Ark. 88, 689 S.W.2d 535 (1985).
Schaeffer, 286 Ark. at 115, 689 S.W.2d  at 539.
     In Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990), this
court reviewed a case that was factually similar to the instant
case.  In Weber, the defendant was driving a pickup truck and
pulling a stock trailer when he came over the crest of a hill, saw
vehicles stopped in front of him, and was unable to stop his truck
before running into the back of the plaintiff's vehicle.  The
defendant testified that he was driving forty to forty-five miles
per hour at the time he topped the hill, even though the posted
speed limit was thirty-five.  He further testified that he saw the
vehicles after climbing the hill, and that they were forty or fifty
yards down the hill.  The jury returned a verdict in favor of the
defendant.  This court quoted with approval the passages from
Morton and Schaeffer set out above, and concluded that "the
questions of negligence and proximate cause were for the jury to
decide, and it resolved them in [defendant's] favor."  Weber, 302
Ark. at 178, 787 S.W.2d  at 692.
     Anderson and Kelly contend that their case differs from the
Morton-Schaeffer-Weber line of cases.  They say this is so because
here Graham admitted to negligence.  We disagree.  It is true that
Graham testified to the following facts:
         that he knew about the particular stretch of Highway 82
          and the location of the hill he crested before the
          accident and that there were intersecting streets on the
          other side of the hill;
         that he saw the Anderson/Kelly station wagon ahead;
         That he could have avoided the accident if he had been
          driving at a reduced speed; and
         that he continued at a steady speed regardless of the
          dangers ahead.
Anderson and Kelly particularly underscore this exchange between
Graham and counsel for Anderson and Kelly which, they urge, shows
that Graham admitted negligence:
          COUNSEL: But you elected on your own, even though
     you knew you were loaded and even though you knew this
     hill was here, you elected to proceed over that hill at
     thirty to thirty-five miles per hour, didn't you?
          GRAHAM: I selected the speed that I could go through
     town without holding up a lot of traffic without having
     to downshift more trying to pull up and down hills.
          COUNSEL: That was for your convenience, wasn't it,
     sir?
          GRAHAM: Well, my convenience and the other traffic
     convenience.
     Graham, for his part, argues that the evidence viewed most
favorably in his light as appellee is:
         that his speed going through Stamps was 29 to 30 m.p.h.
          going up hills and as high as 35 m.p.h. going down hills. 
          The speed limit was 30 m.p.h.;
         that to stop in time after cresting the hill, he would
          have had to be traveling 20 to 25 m.p.h.;
         that there were no warning signs about a dangerous
          intersection;
         that the sun momentarily blinded him at the top of the
          hill;
         that he hit his brakes as soon as he saw the station
          wagon but could not veer to the left because of an
          oncoming truck or to the right for fear of rolling his
          truck over on top of Anderson/Kelly's station wagon; and
         that there was not enough distance from the top of the
          hill to the station wagon for him to stop.
In this explanation, we discern no admission of negligence on
Graham's part.  In fact, he maintains that he did everything he
could to avoid the accident.  Moreover, there was evidence in this
case that the hill and the intersection were dangerous, and that a
driver, using ordinary care, could find himself in the situation of
not being able to stop in time to avoid a car stopped at the
intersection.  Even Kelly said to Anderson while they were halted
at the intersection: "[T]his is a bad place to have to stop." 
Hence, there is evidence to support a jury verdict that Graham
acted reasonably under the circumstances.
     We conclude that our standard of review with respect to the
denial of the plaintiff's motion for directed verdict is whether
the defendants' case was utterly without a rational basis.  See
Morton v. American Med. Int'l, Inc., supra.  It is clear to us that
the case of Graham and Raney was not utterly without a rational
basis.  With regard to the denial of the motion for a new trial, we
are of the opinion that there was substantial evidence to support
the jury verdict, giving the verdict the benefit of all reasonable
inferences permissible under the proof.  See Bell v. Darwin, 327
Ark. 298, 937 S.W.2d 665 (1997); Weber v. Bailey, supra. 
Accordingly, we hold that the trial court did not err in denying
either the motion for a directed verdict or the motion for a new
trial.
     Because we are not confronted in this case with the issue of
a defendant who chose to present little or no evidence at trial,
there is no need for us to consider this question, as we did in
Schaeffer v. McGhee, supra.  Moreover, since we conclude there was
substantial evidence supporting a defendant's verdict on the
negligence question, we need not address the issue of causation.
     Affirmed.
     Thornton, J., not participating.