150 F.3d 949 (8th Cir. 1998), 97-2760, Ratliff v. Schiber Truck Co., Inc.

Docket Nº97-2760.
Citation150 F.3d 949
Party NameRebecca RATLIFF and Robert Ratliff, Plaintiffs/Appellants, v. SCHIBER TRUCK COMPANY, INC., Defendant/Appellee.
Case DateAugust 05, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 949

150 F.3d 949 (8th Cir. 1998)

Rebecca RATLIFF and Robert Ratliff, Plaintiffs/Appellants,

v.

SCHIBER TRUCK COMPANY, INC., Defendant/Appellee.

No. 97-2760.

United States Court of Appeals, Eighth Circuit

August 5, 1998

Submitted Feb. 12, 1998.

Page 950

[Copyrighted Material Omitted]

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Murry A. Marks, St. Louis, MO, argued (Jason S. Marks, St. Louis, on the brief), for Plaintiffs/Appellants.

Robyn G. Fox, St. Louis, MO, argued (Brian R. Plegge, St. Louis, on the brief), for Defendant/Appellee.

Before WOLLMAN and HANSEN, Circuit Judges, and DAVIS 1, District Judge.

DAVIS, District Judge.

Appellants Rebecca and Robert Ratliff are the surviving children of Jane Ratliff. Appellants commenced this action in the United States District Court, Eastern District of Missouri, alleging that Gene Baugh, an employee of Appellee Schiber Truck Company, Inc. ("Schiber"), wrongfully caused the death of their mother. On April 22, 1997, a jury returned a verdict finding decedent Mrs. Ratliff 100% at fault and Schiber 0% at fault for the auto accident that caused her death. After the jury rendered its verdict, Appellants moved the district court for a new trial. By written order, the district court 2 considered the arguments of counsel and denied their motion for a new trial, finding the verdict was not against the clear weight of the evidence. The district court was also unpersuaded that a new trial was warranted because of asserted errors committed by the district court. Appellants now appeal the district court's denial of their motion for a new trial.

I.

On July 28, 1995, Jane Ratliff was driving a car, traveling northbound in the right lane of Highway 61, a four lane highway in Pike County, Missouri. Her brother, Robert Selim, was a passenger in the car. Ahead of her in the right lane was a commercial tanker truck owned by Schiber and driven by one of its employees, Gene Baugh. As she approached the Schiber truck, Mrs. Ratliff entered into the left lane to pass it. Once she moved into the left lane, she observed another vehicle, in the same left lane, traveling southbound directly toward her. To avoid a head-on collision with the wrong way driver, Mrs. Ratliff attempted to return to the right lane. However, at that point, Mr. Baugh had stopped, or substantially slowed down, the truck in the right lane. 3 As a result, when Mrs. Ratliff attempted to return to the right

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lane, she collided with the truck, and suffered fatal injuries.

Appellants commenced this wrongful death action against Schiber, alleging that Schiber proximately caused or contributed to the death of Mrs. Ratliff, because of the negligence of Gene Baugh in stopping the truck in the right lane of the highway. In its defense, Appellee argued Mr. Baugh was not negligent, and that in fact the accident was caused as a result of Mrs. Ratliff's excessive speed. The matter was tried before a jury on April 21 and 22, 1997. The verdict form provided to the jury directed that the jury apportion the fault of the accident between Mrs. Ratliff and Mr. Baugh. The jury returned their verdict, finding Mrs. Ratliff 100% at fault.

II.

A verdict will stand if it is supported by substantial evidence. Purchal v. Patterson, 762 F.2d 713, 715 (8th Cir.1985). A new trial may be granted where the verdict is against the clear weight of the evidence or to prevent injustice. Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186 (8th Cir.1972) cert. denied Aalco Wrecking Co., Inc. v. Fireman's Fund Ins. Co., 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). Courts cannot reweigh the evidence and set aside a jury verdict because the jury could have drawn different conclusions or inferences or because the court feels that other results are more reasonable. Id. (citing Tennant v. Peoria and Pakin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)). Great deference is accorded the district court ruling on a motion for new trial, and will be reversed only upon a strong showing of abuse. Shaffer v. Wilkes, 65 F.3d 115, 118 (8th Cir.1995).

At trial, Appellants offered the testimony of Ruth Freeman. Ms. Freeman is a truck driver that was also traveling northbound on Highway 61 on the date of the accident. Ms. Freeman testified that she was not too far ahead of Mr. Baugh and Mrs. Ratliff when she noticed a cream colored Ford Fairmont driven by an older woman traveling southbound in the left, northbound lane. Ms. Freeman maintained her speed and passed the wrong way vehicle. After the vehicle passed, she heard the accident and stopped to phone for the police and an ambulance.

Mrs. Ratliff's brother, Robert Selim, also testified at the trial as a witness for Appellants. Mr. Selim testified that he and his sister were traveling to Des Moines, Iowa for a family reunion. He stated that on the day of the accident, the weather was clear. Shortly before the accident, Mr. Selim testified that as their car approached the Schiber truck, Mrs. Ratliff moved into the left lane in order to pass the truck. He could not recall how fast his sister was driving at that time.

Appellants also called Bruce Becker, a trooper with the Missouri Highway Patrol, as a witness at trial. Trooper Becker was on duty the day of the accident and was called to the scene. Because Mrs. Ratliff's car had left skid marks, he and Corporal Murphy took measurements at the accident scene to determine placement and dimensions of skid marks, gouge marks and the final resting places of the Ratliff vehicle and the Schiber truck. Trooper Becker also testified that he spoke with Mr. Baugh at the scene, who stated that he had stopped his truck after seeing the wrong way driver. Trooper Becker also testified regarding Missouri statute section 304.019, which provides, in part, that "no person shall stop or suddenly decrease the speed or turn a vehicle from direct course or move right or left upon a roadway until that movement can be made with reasonable safety." Trooper Becker also testified that the speed limit at the scene was 40 m.p.h., as it was a construction zone.

Finally, Appellants' expert in the field of accident reconstruction, Francis Oldham, testified that in his opinion, the accident was primarily caused because Mr. Baugh stopped the trailer truck in response to the wrong way driver while remaining in the right lane of the highway. Mr. Oldham opined that if Mr. Baugh had continued to drive at 40 m.p.h., the accident would not have occurred because Mrs. Ratliff would not have had to pull out to pass the truck, or if she did pull out to pass, she would have seen the wrong way driver sooner and would have had more room to swerve and brake before coming into contact with the Schiber truck. Based upon

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the skid marks as measured by the state patrol, Mr. Oldham opined that Mrs. Ratliff was traveling between 46 and 53 m.p.h. when she began to skid and that the distance between the wrong way vehicle and Mrs. Ratliff had to be at least 180 to 200 feet.

On cross-examination, Mr. Oldham admitted that although his report identified Mr. Baugh as negligent, the wrong way driver was also negligent and contributed to the accident. Mr. Oldham also admitted that his calculations established that Mrs. Ratliff was exceeding the speed limit at the time of the accident, and that her excessive speed "probably contributed to some degree" to the accident. Counsel for Appellee asked Mr. Oldham if he had read the report of Sergeant Gray, a Missouri Highway Patrol trooper, who had prepared the report on the basis of his investigation of the accident. At that point, counsel for Appellants asked to approach the bench, and there submitted his objection to any reference to Sergeant Gray's report on the basis that Sergeant Gray was not going to be called as a witness. The district court overruled the objection on the basis that Mr. Oldham had reviewed Sergeant Gray's report when Mr. Oldham wrote his report. Counsel for Appellees then asked Mr. Oldham the following:

MR. PLEGGE: Are you aware that Sergeant Gray said in his report that in summary if Jane Ratliff's vehicle had been traveling at the posted speed limit of 40 miles per hour, the driver would have been able to slow down and move back into the driving lane missing vehicle number two and the wrong-way driver, are you aware of that opinion he gave?

MR. OLDHAM: Yes.

In its case-in-chief, Appellee submitted the deposition testimony of the driver of another vehicle, Mr. Henke. Mr. Henke was traveling behind Ms. Ratliff when the accident occurred. Mr. Henke testified that he first observed Mrs. Ratliff's vehicle when she passed him in the left hand lane. Mr. Henke testified that he was traveling 58 m.p.h. on cruise control, and estimated that Mrs. Ratliff was traveling at approximately 65-70 m.p.h. when she passed him. He testified that after she passed him, he observed Mrs. Ratliff return to the right hand lane. Shortly thereafter, he observed the Schiber truck for the first time after he came over a small crest in the road. When he first noticed the Schiber truck, Mr. Henke testified that its flashers were on, and that the truck was coming to a stop. At that time, Mrs. Ratliff was approximately 200 yards behind the truck, still traveling at a rate of 65-70 m.p.h., when she swung into the left lane to pass the truck. Mr. Henke testified that he also swung into the left lane to pass the Schiber truck and at that time, saw the wrong way driver. He also observed that the Schiber truck's door was open and that the driver was "waiving his hands trying to stop somebody." Mr. Henke further testified as follows:

[Mrs. Ratliff] just turned right, and then just ran right into the left rear bumper of the truck. And that car bounced. I don't know how high, but it was higher than the tanker because I saw the complete under side of that vehicle in the air, and then bounced back about ten feet.

(Dep...

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