*1 Schrader, as Individually Richard SCHRADER and Betty Edward BELL and James Next Friend of David Schrader Bell Barbara 89-138 Court of
Supreme Arkansas delivered December Opinion *2 Karber, Pryor, Barry, Smith & by: Thomas B. for Pryor, appellants. D. and
Gary Person Bill R. for Perceful, appellees. Robert H. Justice. The returned a defend- Dudley, ant’s verdict in this case a car wreck at an involving intersection. The trial court the granted motion for a plaintiffs new trial. We reverse and dismiss. 1982,
In we amended ARCP 59(a)(6) Rule to state that a trial set judge can aside a jury verdict when it is “clearly to the contrary of the . . .” preponderance evidence. Clayton S.W,2d v. Wagnon, 276 Ark. 633 (1982). trial judge cannot substitute his view of the evidence for that of Sorrells, the jury. Bryant 293 Ark.
(1987). If the trial judge trial, denies the motion for a new we will affirm if there is substantial evidence to verdict. If support he grants the trial, motion for a new we will affirm if he did not abuse his discretion in that the finding against verdict was clearly Wilson, Brown v. preponderance the evidence. 450,669 S.W.2d 6 In this case the trial abused his judge discretion because the jury’s against verdict was not clearly evidence. Schrader,
Appellant Scott high school sixteen-year-old lunch, student who had home gone got for into his father’s Chevrolet Malibu to drive back to school. He had not driven that weeks, particular it, car in four but when he last drove the brakes worked and satisfactorily. According to he left home appellant, started down a rather hill at about 30 or 35 miles hour in a long curved, mile his per hour zone. The road and he began apply service brakes. worked unaware They he was satisfactorily, they might later fail. He there continued to slow down because was a stop sign at the intersection at the bottom of the hill. When he was 10 to 15 feet from the sign, 10 to 15 miles stop going hour, he began more pressure to the brake He pedal. had both feet on the brake pedal. Suddenly, warning, without floor, went pedal to the and the service brakes failed. direction, headed in an Appellant, ran easterly sign past stop that, and into the intersection. He testified as he entered the intersection, he took evasive action to the by swerving right, but could not from keep running into truck. appellee’s pick-up He stated that his testimony substantiated by physical evidence which does show that the far left part front bumper struck appellee’s right door. driving his truck in a pickup southerly direc-
tion on the intersecting road. He testified that his was about *3 35 miles hour in a 40 per mile hour zone. per He stated that as he approached the intersection he noticed that who was appellant, going hour, 15 to 20 miles per was excited and to do trying brakes, something like the but it was obvious car appellant’s was to going ram appellee’s truck. Appellee swerved into the left lane, and car hit appellant’s right side of his truck. Appellee did not state whether appellant to attempted swerve his car or take other any evasive action to avoid the wreck. He was asked a question which was designed to elicit such testimony, but it did not do so. The question answer were:
Q. Did see you the defendant do [appellant] to anything try to avoid this wreck?
A. Er—he car, to appeared doing be something I’m not sure if he was—er—if he —if he was excited or just what, scared or but he to be appeared the brake. Appellant on put evidence by an mechanic expert witness who testified that he examined the service brakes on appellant’s car after the accident and found that the master had cylinder blown out the seals on both ends. He stated that on rare occasions a master cylinder without separate like the one on pistons, car, appellant’s and, can blow out both seals when that happens, the service go Further, brakes can out without warning. there would be no leakage or puddling on the surface under the car to warn a driver who is about to enter the car leakage because the Also, internal. the hydraulic braking is a system pressure system and when the It is like seals are out there no resistance. pressure a of water —there wouldn’t be “pushing pencil through glass any resistance there.” did not Additionally, appellee request an instruction on the to in good working maintain brakes duty order, Ark. Code Ann. 27-37-501 or on the limit (1987), speed § car. applicable
The heard the above evidence and instructions by the trial court and determined that was not appellant negligent. The trial court trial he felt the granted a new because manner, (1) (2) failed to his vehicle in a appellant operate proper control, action, failed to (3) maintain failed to take evasive proper (4) failed In ruling, to react a1 manner. so the trial proper court abused its discretion.
There was no that the accident was caused showing by appellant’s failure to his vehicle in manner. operate a proper Appellant testified that at the of the hill he driving top hour, miles per and another time he said he was 30 miles driving hour at per that limit there was 30 miles point. speed per However, hour. he stated he had reduced his down speed halfway hill to 10 to 20 miles hour. stated that appellant hour, 15 to 20 only going miles so was not a factor which contributed to the accident. There was no suggestion that was out of his appellant violating lane or of the rules of the road before his brakes no instruc immediately failed. There was tion failure to maintain that showing brakes. There was no appellant was at fault in an break failing anticipate abrupt down in his service brake. There was no that showing appellant *4 failed to swerve or take other evasive action. brakes;
The his he to use service appellant only attempted did not to use his brake. At first blush this attempt emergency However, might seem failed negligent. service brake intersection, when he was 10 to 15 feet from the and he at miles traveling per a of 10 to 20 miles hour. At 20 per hour, second, he miles would be 29.33 feet and at 10 traveling per Thus, hour service 14.67 feet second. from the time his brakes failed and he was with both of his feet applying pressure the brake what had he had less than a second to realize pedal, react, get take his left foot off service brake happened, pedal, his left foot on pressure. brake emergency pedal, circumstances, his judge
Under these
the trial
abused
clearly against
discretion in
that
verdict was
holding
jury
of the evidence.
preponderance
asks us to affirm the trial
Appellee
judge’s ruling by
the standard of strict
See Stevens v. Wood
applying
liability.
Sawmill, Inc.,
(S.D. 1988).
Reversed and dismissed. J., dissents in
Purtle, and concurs in part part. Justice, Purtle, in dissenting concurring John I. part has, I am part. see that the somewhat pleased majority joined dissent in belatedly, my Penny Phillips, S.W.2d 4 The similarities between this case and decided Penny, a mere seven months ago, striking. are Penny involveda who teenage-driver didn’t see a curve and skidded off a ditch, road into a a injuring The driver had not been passenger. speeding, drinking, or violating any rule at the time of highway accident, and the found no on his negligence or his parents’ The trial court ruled part. that the verdict was clearly against evidence, the preponderance of the and this court af- trial, firmed his order for a new noting: the trial court “[W]here trial, has ordered a new it is more difficult to establish an abuse of discretion than when a new trial is denied.” 298 Ark. at S.W.2d at 5. almost language Penny weighted reasoning
totally toward the trial court’s
Little
discretionary powers.
attention is
to the
function as
or to the
paid
jury’s
finder
fact
actual application of the amended
Rule
clause in ARCP
59(a)(6) “clearly against a
As
of the evidence.”
preponderance
—
I stated in
Penny:
dissent in
“The
in the
evidence set out
opinion sufficient to establish that the
fairly evenly
facts were
divided, thereby
...
It seems to me
presenting jury question.
that the trial court
judgment
substituted its
for that of the jury.”
*5
484,
developed 633 S.W.2d It overturned seven worth of years’ opinions the 1982 to Rule interpreting amendment and, 59(a)(6) dissent, as I out in to the rule pointed my “reverted Clayton as it existed and the amended rule. The prior” in the majority opinion case makes no to come to present attempt Now, terms with the Penny. of after I have come to peculiarity Penny accept decision in as the definitive word on majority issue, this I find that a decision has been reached in this case at odds totally with the view as on majority’s expressed May this I am year. gratified that the now agrees with majority Penny dissent in and with the Clayton holdings court’s in v. Kobera, Wagnon and Wilson
(1988), among others.
Still, however, the Penny remains: If the decision in question was right, how can the decision in this case—-and the of cases body from Clayton to Penny right? be The concluding para- —also Penny graph squarely with the case and point present deserves to be quoted:
Having examined the evidence we carefully, conclude that have appellants failed to show that the trial court’s discretion was abused. In addition having heard the testimony its the trial court entirety, had benefit of and a photographs diagram of the accident scene which are not in the abstract. There no contention that Dana inwas manner fault Phillips testimony at and the it, Chris Penny, however one choose to may points interpret to a unerringly failure to maintain a lookout or a proper failure to maintain as control over his vehicle proper proximate causes of the collision. 483-484,
I court has come around so soon glad am this have, with a sense that thinking. my opinions I can now retire all, I that in the future after sometimes had an effect. hope other constitutional Rights dissents to the Bill of relating will have an issues equal impact. Arkansas v. STATE of
Steve GIBSON CR 89-131 Court of Arkansas
Supreme delivered December Opinion