507 F.2d 533 (10th Cir. 1974), 74-1433, Harris v. Quinones

Docket Nº:74-1433, 74-1519.
Citation:507 F.2d 533
Party Name:Alton HARRIS and United States of America, Plaintiffs-Appellees, v. Angie QUINONES, and Wesco Insurance Company, Defendants-Appellants.
Case Date:December 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 533

507 F.2d 533 (10th Cir. 1974)

Alton HARRIS and United States of America, Plaintiffs-Appellees,

v.

Angie QUINONES, and Wesco Insurance Company, Defendants-Appellants.

Nos. 74-1433, 74-1519.

United States Court of Appeals, Tenth Circuit

December 11, 1974

Argued Oct. 24, 1974.

Page 534

Edward E. Triviz, Las Cruces, N. M. (Victor R. Ortega, U.S. Atty., and Mark C. Meiering, Asst. U.S. Atty., Albuquerque, N. M., on the brief), for plaintiffs-appellees.

William W. Bivins, Las Cruces, N. M., for defendant-appellant Angie Quinones.

LeRoi Farlow, Albuquerque, N. M., for defendant-appellant Wesco Ins. Co.

Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

These consolidated appeals stem from a car-motorcycle accident which occurred June 23, 1972, in Las Cruces, New Mexico. In the first appeal, Angie Quinones, the driver of the car involved in the accident and the defendant below, appeals peals

Page 535

from an order granting a new trial to the plaintiffs, Harris, the driver of the motorcycle, and the United States, 1 following a jury verdict in her favor at the first trial. The second appeal is brought by Quinones' insurance carrier, Wesco Insurance Company (Wesco), from a declaratory judgment holding that at the time of this accident the car driven by Quinones was covered by an insurance policy issued by Wesco.

I.

Angie Quinones was driving her car in a westerly direction on Mesquite Street in Las Cruces in the late afternoon of June 23, 1972. Having stopped at an intersection where Mesquite crosses Main Street-- a four-lane highway running generally North-South-- Miss Quinones proceeded across the intersection in spite of the fact that, because of the glare from the sun, she was unable to clearly observe traffic on Main to which she was obligated to yield. At the far side of the intersection her car collided with a motorcycle driven by plaintiff Harris who was traveling in a southerly direction on Main. Neither driver, apparently, observed the other until the moment of impact.

At the first trial the jury returned a verdict in favor of Miss Quinones, finding that she was not 'guilty' of negligence and that the plaintiff Harris was 'guilty' of contributory negligence. On Motion by Harris, the trial judge granted new trial on the ground that the evidence was insufficient to support the verdict. At the second trial Harris was awarded a judgment of $40,000 and the United States was awarded $3,443.80 for medical services provided to Harris. Miss Quinones contends that the trial court erred in granting a new trial to Harris following the first verdict in her favor. We disagree.

We have consistently recognized that a motion for a new trial made on the ground that the verdict of the jury is against the weight of the evidence normally presents a question of fact and not of law and is addressed to the discretion of the trial court. Community National Life Insurance Company v. Parker Square Savings and Loan Association, 406 F.2d 603 (10th Cir. 1969); Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967); Peter Kiewit Sons Company v. Clayton, 366 F.2d 551 (10th Cir. 1966); Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811 (10th Cir. 1962). On review, we will not reverse a decision granting or refusing to grant a motion for new trial absent an unusual situation, Moore v. Shultz,491 F.2d 294 (10th Cir. 1974), U.S.App.Pndg., or the showing of a gross abuse of discretion on the part of the district court judge, Holmes v. Wack, 464 F.2d 86 (10th Cir. 1972).

From the jury's verdict, which contained an unauthorized written message from the foreman, 2 the trial judge was here able to deduce that the jury, in finding the defendant 'not guilty': (1) had ignored the uncontroverted evidence that Miss Quinones had proceeded blindly across the intersection; and (2) had relied upon evidence of little or no credible weight in finding Harris 'guilty' of contributory negligence. The cases cited by appellant for the rule that failure to keep a lookout may constitute contributory negligence, and that evidence of such a failure may support a verdict, are inapposite. In each of those cases there existed strong evidence, lacking here, that the party charged with failure to keep a lookout had either seen the other vehicle and had failed to react properly, or that he clearly should have been able to see the other party (or vehicle) involved in the accident prior to its occurrence. Here the only evidence tending to show that Harris had failed to keep a

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proper lookout was conjectural testimony that if Harris had seen the Quinones' vehicle he may have been able to avoid the accident. No witness testified that under the conditions presented here Harris should have been able to see the Quinones'...

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