*1 120
In our curiam order in Case 94-952 No. we per motion to and consolidate the records in the two chronologize cases. We remanded the consolidated case the Trial Court and Chancellor R. Hannah to appointed Chancellor Alice replace Jim S. who had recused. Gray
The consolidated rеcord in this motion is in the sought of Chancellor Hannah who it to possession conduct further using in the Mr. case. Gelzine make whatever proceedings may arrange ments Chancellor Hannah access to and may permit temporary of the record. copying
BROWN, J., participating. H. YOUNG HONEYCUTT Tammy Lynn
James 95-1209 Court of Arkansas
Supreme delivered Opinion April *2 by: Smith, Karber Ben & T. Pryor, Alford, Barry, Barry, appellant. PLC, by: & Moll Kendall B. Scott Jones, Jackson Jones J.
Hardin, for appellee. Brаdley D. Chief returned a Jesson, Justice. defendant’s case verdict this an automobile accident on involving court The trial motion for highway bridge. plaintiff’s new from which defendant We affirm. appeals. 3, 1994, on before 5:00 Shortly p.m. Tammy appellee June on the westbound Midland Avenue Honeycutt Lynn conditions, from Due to Van Burén to Fort Smith. she rainy bridge limit. She could see with under the 40 m.p.h. speed traveling at which were normal her windshield the use of wipers, operating when her car was in the lane hydro- right-hand Honeycutt speed. lane, the left hit the concrete divider on bridge, slid into planed, her rear-view mirror saw a to a She looked in and came stop. a.nd hеr and turn on its flashers. car behind white up pull behind her would activated her flashers so that then person turned her car wanted to exit her car. She had off know she her brake when the white car behind up emergency pulled truck, the white H. forcing rear-ended by appellant Young’s James car into hers. It was that Young Honeycutt’s testimony apologized her, accident, had her after the told her that he had not seen brake, *3 her and never slowed down. touched Young explained water off his windshield that had that he was to clear some trying over from the side of the opposite bridge. splashed David Thomas of the Fort Smith Police Officer Department accident. on his to the was raining way investigated Though scene, he with the he stated had no while problem seeing aid of his windshield He testified that the accident occurred wipers. Thomas, there 500 feet from the crest of the bridge. According view from the crest of the Young’s bridge nothing obstructing he vehicles. told Thomas that hаd been stopped Young in the left lane and that water had over the traveling splashed windshield, concrete barrier from the other lanes onto his prevent- him from the vehicles of him until the front ing seeing stopped However, occurred. he that he continued at a collision told Thomas and did down. not see reason to slow While steady speed any vehicle, saw flashers on he did not recall Thomas Honeycutt’s flashers on the white car. Because the rear end of the white seeing smashed, that the have car was Thomas could opined damage caused the flashers not to operate. stated that while she was not
Rеgarding damages, Honeycutt manner from the initial made with the hurt contact she any her hit the head seat-belt latch after the white car was bridge, hers, into her car around. She knocked to turn causing completely head, described an knot on the back of her and stated “egg-size” neck, back, her and left collarbоne The same were also hurting. accident, under- of the she went to the where she evening hospital, Three went and was muscle relaxers and x-rays given pain pills. days headaches, later, and both experiencing pain legs, who diagnosed referred an surgeon, orthopedic soreness. She approximatеly strain. Honeycutt completed and thoracic cervical claim In her negligence weeks of therapy. three physical future and for injuries, past she damages personal Young, sought lost income. and and future mental anguish, medical past expenses, $5,203.57 $30,000, in medical expenses for She including prayed for hоurs of lost $208.84 wages. ver- for directed denied motion After the trial court Young’s the time of the dict, hard at testified that it was very raining Young accident, the rain on the he the hardest and that part caught slower because of the his at 30 He estimated m.p.h. bridge. in the inside that he It was got caught weather. Young’s testimony lanes. traffic and сould not change According lane because of down before he hit the see or slow he did not anything Young, car, on the white see flashers and he did not emergency white any vehicle. car or on Honeycutt’s evidence, AMI instructions were all the various
At the close of the burden damages submitted to jury, including proof сause, law rules of the the common based on negligence, proximate road, returned a unanimous comparative negligence. from the trial court’s verdict for who Young, appeals motion for new trial. Honeycutt’s first contends that the trial order judge’s *4 it include a that the new trial is deficient because does not “finding” of the the verdict was jury’s clearly contrary preponderance for evidence. Before the Uniform Rules Circuit Chancery 1988, seeIn Re: Abolishment the Court were abolished Uniform of Courts, 664, Ark. Rules Circuitand 294 Chancery of state, the to with (1987), Rule 16 required judges particularity, the new reasons for their decision in their order granting specific so, that If failed to do there was a on trial. they presumption appeal Saunders, correct. v. 293 Ark. the verdict was Seee.g., Stephens jury’s 276, 279, Sorrels, 737 S.W.2d 626 Brant v. 293 Ark. (1987); 737 There is no such in Arkan S.W.2d 450 (1987). requirement present Procedure; thus, of is without sas Rules Civil Young’s argument merit. next contends that the trial court abused its a new trial the verdict was not because jury’s
discretion granting of the of the evidence. Rule 59(a)(6) clearly against preponderance 124 new trial that a may Rules of Procedure provides Arkansas Civil
the on on all or of the issues all or of the parties part be any granted when the verdict or decision of the aggrieved the party apрlication court the evidence. The trial the of is clearly against preponderance matter, its view as not substitute may discretion in has limited when is the verdict clearly evidence for the except of the jury’s v. 320 the evidence. Bristow Flurry, of preponderance 51, Ark. Richardson 316 S.W.2d v. (1995); Flanery, Ark. 894 894 However, 310, a trial court may grant S.W.2d 589 (1994). 871 v. Brant when a of has occurred. justice new trial miscarriage Sorrells, of a motion In reviewing supra. abused his or her discretion. the test whether the judge new further v. We have v. Richardson Flanery, Bristow Flurry, supra; supra. abuse, see a “clear” this standard as showing described requiring 150, Sorrells, v. Ark. 689 v. Co. 286 Thompson, Brant Saber supra; Mfg. abuse оr “manifest” (1985), by S.W.2d 567 acting improvidently Porch, v. 293 without due consideration. See Dedman thoughtlessly Parker, 1, 571, Adams v. Ark. 708 739 S.W.2d 289 (1987); Ark. 685 276 Ark. 633 S.W.2d (1986); v. Wagnon, S.W.2d Clayton A discretion is difficult when of abuse of more (1982). showing been the motion new trial has because granted party opposing v. will have another Bristow Flurry, supra; opportunity prevail. Richardson Flanery, supra. driver, Bristow,
In Bristоw v. defendant a cab supra, Flurry, in Fort Ninth Street intersection Garrison approached the seat to Smith when his reached over Flurry, passenger, plaintiff stated, that, he last her fare and “Here.” Bristow claimed when pay looked, turned the intersection ahead was so he light green, back, However, collect the he turned from when money Flurry. intersection, he moment he was in the at which saw a truck a point with Bristow claimed truck was before it. colliding speeding. favor, returned a in Bristow’s the trial court verdict but affirmed, new trial. We motion for Flurry’s noting had conceded as he Bristow he was not to the road attention paying entered the intersection to the collision. prior trial in
We likewise affirmed the trial court’s
a new
*5
case,
v.
In that
Richardson
defendant Richardson
Flanery, supra.
lane,
her car on a
access
feed-on
to
Highway
attempting
car,
which
She failed to
and collided with
107.
yield
Flanerys’s
a
south on the
returned
general
traveling
highway.
jury
favor,
the trial court
but
granted
in Richardson’s
verdict
that the trial court did
new trial. We held
motion for
Flanerys’s
new trial because the over-
its discretion
abuse
to
that Richardson’s failure
of the evidence was
whelming weight
we
accident. In so
recog-
been the cause of the
holding,
had
yield
evidence
to
nized that the
tending
disprove
allegations
only
was her own
Richardsоn
testimony regarding
negligence against
the accident.
cause of
Crane,
we
Ark.
In Turrise the trial of a new trial. Defendant affirmed court’s granting again road, overturned, the driver of a van that ran off the Turrise was The trial court a new injured plaintiff passengers. another vehicle Turrise’s testimony causing finding regarding him to run off the road at variance with the evidence physical and the witnesses. In testimony affirming independent decision, we observed that the evidence to only tending excuse Turrise’s failure to the van on the road was his own keep sudden and concluded that the evi emergency testimony, physical dence showed a course of conduct to that which an contrary would have undertaken when confronted with ordinary person such an emergency.
We that in our decision Bristowv. recognize Flurry, supra, we that the was not instructed on com thought significant jury case, fault. While the was so instructed in the parative present we cannot conclude that thе trial court abused its discretion a new trial. his own admitted he ordering By testimony, Young never slowed down or his brakes he hit before the white car. applied This was so even he “didn’t see but water.” though anything and Thomas offered similar testimony. Particularly, Thomas testified that told him that after water on splashed windshield, Moreover, his he continued at there was “steady speed.” a distance of 500 feet from the crest of to approximately bridge Thomas, accident site. there was According nothing obstructing view from the crest of the vehicles. Young’s bridge stopped Thus, we must conclude that this evidence demonstrated course of conduct to that which an would have contrary ordinary person undertaken when confronted with such an emergency.
The trial court read AMI 901 to which jury, vehicles, describes a driver’s other lookout for his duty keep control, vehicle under and to drive at a that is reasonable and *6 that As it is uncontroverted under the circumstances. prudent water on his not his when did decrease speed splashed Young windshield, that trial court erred in we the concluding cannot agree that of trial warranted on the basis the a new negligence that of It was if was exceeded the negligence Young. by Honeycutt, any, a and sustained muscle strain uncontroverted that Honeycutt аlso these a full work as a result of the accident. Under of lost nearly day circumstances, have the that will Young opportunity recognizing its the trial court did not abuse at another we hold that prevail a new trial. discretion granting Affirmed.
Glaze, J., dissents. This court that before requires Justice, dissenting. GLAZE, Tom its the evidence that of the triаl court substitute view of for may a be the of the verdict must jury’s clearlyagainst preponderance jury, the To determine whether 59(a)(6). the evidence. A.R.C.P. Rule discretion, the court abused its it is to examine order trial helpful a new trial to determine the rationale the trial Here, that the order of its view for of twelve substitution jurors. that that it was the trial court’s the reflects only opinion negligence if was exceeded the of negligence Young, of Honeycutt, any, by that suffered as a result the automobile Honeycutt damage ascertain accident. Without more explanation, impossible the trial court abused its discretion without whether рroperly the In the evidence and instructions evidence. examining reviewing I record the trial court’s submit the fails jury, support the verdict was substituted that conflicting jury’s clearly opinion Therefore, I must dis- evidence. preponderance from the trial court’s ruling sent opinion upholding majority’s new trial. Honeycutt recites evidеnce majority support opinion in the that Mr. was a court’s finding negligent participant evidence case. does not that there was This dissent contest present could have found Young negligent. whereby judge jury However, failure to fallsshort its analysis recognize majority’s that there was evidence in the case whereby presented present more, have if could concluded equally, Honeycutt than Young. negligent where she admit- is found
Evidence of Honeycutt’s negligence when she across control of her vehicle ted that she lost hydroplaned divider. The traffic and struck the concrete two lanes of majority testified that she was undеr the recites that driving speed limit, that she was under when in fact she testified probably but that she did at limit because it was not look raining, *7 her and was unsure as to whether she was over driving speedometer limit, the that she was or under she only thought driving more than she would have been on a normal slowly day.Regardless, it was uncontroverted that into the con- Honeycutt hydroplaned alone, crete wall where her car came to rest. From this testimony the could have concluded that was jury Honeycutt negligent pursu- ant to AMI and failed to maintain control of 901(B) (C) having her car and at an unsafe also AMI speed. judge gave which instructed the that it the 305(b), was of both jury duty invоlved the occurrence to use care for the persons ordinary instruction, of others and their Under this the safety property. jury could also have found she when chose to leave Honeycutt negligent her car on the as own Honeycutts stopped bridge, testimony included that her car was not rendered immovable either by accident.
This court has reversed trial courts’
of new trials as an
granting
abuse of discretion when the
had before it evidence
aof
which,
substantial nature
if
the
independent
accepted by
jury,
could
the verdict and which was at least the
of
support
equivalent
Smith,
evidence. SeeRazorback
Fort
any
Cab
Inc.v.
countervailing
of
Martin,
445,
Crane,
313 Ark.
2 (1993);
856 S.W.2d
Turrisev.
303
576,
Bell,
38,
Ark.
For in Bristowv. 320 Ark. example, Flurry, case, the trial (1995), unlike in the no judge, present gave compara There, tive fault instruction to the jury. only allegations Moreover, another’s was Bristow’s own negligence Bris- testimony. tow conceded that he was not attention to the road as he paying entered the intersection to the collision. In Richаrdson v. prior 310, 316 Ark. 871 S.W.2d no Flanery, (1994), 589 independent evidence was to show that the defendant Richardson presented said, that fault. The Richardson court “We recognized at solely the allegations evidence disprove negligence the only tending own cause was her testimony regarding Richardson Turrise, 684, Last, S.W.2d 303 Ark. the accident.” еxcuse Turrise’s failure to van on evidence keep only tending road his own of a sudden testimony emergency. Testimony fault, at Turrise was along and evidence showing physical presented evidence Turrise’s own with the lack of any independent beyond rise to this show that he was not at fault court’s gave testimony its that court was found not to have abused determination the trial new trial. discretion view, In cases relied by majority opinion my upon from the evidence involve that considerably distinguishable proof Here, of a in the case. evidence substantial before the jury present which it nature jury, presented independent were at least as evidence accepted reason, For this I would reverse negligent. equally *8 decision, I believe it erred in verdict was since finding jury’s the evidence. clearly against preponderance Pam TORTORICH TORTORICH Tony 95-332 Court of Arkansas Supreme 15, delivered
Opinion April denied for rehearing 1996.*] [Petition June grant. participating. *Glaze, Brown, would Corbin J., JJ.,