Shows v. Jamison Bedding, Inc.

Decision Date02 April 1982
Docket NumberNo. 80-3517,80-3517
Parties10 Fed. R. Evid. Serv. 307 Colon SHOWS, (Margaret P. Shows, Administratrix of the estate of appellee Colon Shows, for substitution in the place and stead of appellee Colon Shows, deceased), Plaintiff-Appellee, v. JAMISON BEDDING, INC. and Mallon Dobbins, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, Miss., for defendants-appellants.

Pickering & McKenzie, Charles W. Pickering, R. Kelton Pickering, Franklin C. McKenzie, Jr., Laurel, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.

WISDOM, Circuit Judge:

This negligence case arises from a traffic accident in Mississippi. The case was tried to a jury, which returned a verdict for the defendants. On motion of the plaintiff, the district court granted a new trial. At the second trial, the jury returned a verdict of $600,000 for the plaintiff. The defendants now appeal from the judgment on the second verdict, requesting reinstatement of the first jury verdict or, alternatively, a new trial on the question of damages or a remittitur. We affirm the district court.

I. Facts and Proceedings Below

The accident occurred at about 7:30 a.m. on April 19, 1976 on the I-59 highway in Laurel, Mississippi. The pickup truck in which Colon Shows was riding entered the highway from a cloverleaf ramp just north of the point where I-59 forms a bridge over Highway 84. The pickup headed south along I-59, remaining in the merging lane for 40-45 feet before moving leftward into the righthand freeway lane. At this time it was going less than the 30 m.p.h. required on freeway lanes in Mississippi, Miss.Code Ann. § 63-3-509. Shortly after entering the freeway lane, the pickup was struck from behind by an 18-wheel tractor-trailer owned by Jamison Bedding and driven by its employee, Mallon Dobbins. The pickup was thrown from the road and down an embankment.

After the accident, Shows was treated for a broken left arm, a fractured and dislocated right wrist, a broken rib, a concussion, and a deep scalp wound. A few months later he was hospitalized again for a bone graft in his left arm. He was rehospitalized a few days later, when he developed an infection in the hip from which the bone for the graft had been taken. He was hospitalized a fourth time, several months later, for surgery on his right wrist. He spent a total of about 30 days in the hospital and was off work for about two years.

Before the accident, Shows was a "working foreman" earning $14,685 a year. Afterwards, he stopped doing physical work and earned $21,091 a year as a foreman. His total lost wages were $32,704.96. Medical expenses were $11,235.33, and total special damages were thus $43,940.29.

Shows sued Jamison Bedding and Mallon Dobbins in the United States District Court for the Southern District of Mississippi. His complaint alleged that the defendants were negligent, Dobbins directly and Jamison Bedding vicariously, in that Dobbins was exceeding the speed limit and failed to keep a reasonable lookout, to have the vehicle under reasonable control, or to cut to the left or right to avoid the collision. The main issue at the first trial was the precise location of the collision. If the trucks collided on the bridge itself, immediately after the pickup entered the freeway lane, then the jury might have concluded that the pickup driver's negligence per se in driving below the statutory minimum was the sole cause of the accident, or that he negligently shot out in front of the tractor-trailer. If they collided later, when the pickup was south of the bridge, then the pickup would have increased its speed to the legal level, and it would be highly improbable that the defendants were not at least partly responsible for the accident. 1 The parties also disputed whether, at the time of the collision, there was another vehicle to the left of the tractor-trailer, preventing Dobbins from avoiding the collision.

The jury returned a verdict for the defendants. Upon motion by the plaintiff, the judge set aside the verdict and ordered a new trial on the grounds that the verdict was "against the clear, great, and overwhelming weight of the evidence" and so contrary to the evidence as to evince bias, passion, and prejudice on the part of the jury, and that the testimony of the defendant, Dobbins, was so contradictory of his previous statements and deposition, and so contrary to physical laws and facts, as to be incredible.

At the second trial the jury returned a verdict for the plaintiff and awarded him $600,000 in damages. The defendants moved for judgment notwithstanding the verdict, or in the alternative for a new trial or a remittitur. The court denied the motions, and the defendants appealed, requesting reinstatement of the initial jury verdict in their favor 2 or, alternatively, a new trial on the question of damages or a remittitur.

II. The New Trial Order
A. The Legal Standard

The decision to grant or deny a motion for a new trial is generally within the sound discretion of the trial court, and reversible only for an abuse of that discretion. 6A Moore's Federal Practice P 59.08(5) at 59-156 to 163; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2812 at 118-19 (1973). This deferential standard of review has largely arisen from the consideration of cases in which motions for new trials have been denied. See Taylor v. Washington Terminal Co., D.C.Cir.1969, 409 F.2d 145, 148 (Wright, J.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85. When the trial judge has refused to disturb a jury verdict, all the factors that govern our review of his decision favor affirmance. Deference to the trial judge, who has had an opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, operates in harmony with deference to the jury's determination of the weight of the evidence and the constitutional allocation to the jury of questions of fact. Id.; Massey v. Gulf Oil Corp., 5 Cir. 1975, 508 F.2d 92, 94-95, cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57. When the trial judge sets aside a jury verdict and orders a new trial, however, our deference to him is in opposition to the deference due the jury. Consequently, in this circuit as in several others, we apply a broader review to orders granting new trials than to orders denying them. Conway v. Chemical Leaman Tank Lines, Inc., 5 Cir. 1980, 610 F.2d 360, 362 (per curiam). And where a new trial is granted on the ground that the verdict is against the weight of the evidence, we exercise particularly close scrutiny, to protect the litigants' right to a jury trial. Massey, 508 F.2d at 95.

In a further effort to prevent the trial judge from simply substituting his judgment for that of the jury, we require that new trials should not be granted on evidentiary grounds "unless, at a minimum, the verdict is against the great-not merely the greater-weight of the evidence". Conway, 610 F.2d at 363 (citing Spurlin v. General Motors Corp., 5 Cir. 1976, 528 F.2d 612, 620). This standard, of course, is lower than that for a directed verdict or a judgment notwithstanding the verdict. United States ex rel. Weyerhaeuser v. Bucon Construction Co., 5 Cir. 1970, 430 F.2d 420, 423. A verdict can be against the "great weight of the evidence", and thus justify a new trial, even if there is substantial evidence to support it. Id.; see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 at 43 (1973). The trial court in passing on a motion for a new trial need not take the view of the evidence most favorable to the verdict winner, but may weigh the evidence. Bazile v. Bisso Marine Co., Inc., 5 Cir. 1979, 606 F.2d 101, 105, cert. denied, 1980, 449 U.S. 829, 101 S.Ct. 94, 66 L.Ed.2d 33; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 at 44-45 (1973). This does not mean that a judge may order a new trial simply because he disagrees with the jury verdict. He must be convinced that the verdict is against the great weight of the evidence.

On appeal, we review the evidence closely to ensure that this standard has been met. We have also considered three factors that militate against new trials and require a particularly searching review of the evidence: simplicity of the issues, the extent to which the evidence is in dispute, and the absence of any pernicious or undesirable occurrence at trial. Conway, 610 F.2d at 363; Spurlin, 528 F.2d at 620. When all three factors are present, our deference to the jury is reinforced by our confidence in its ability to understand the issues, to evaluate credibility and sort through conflicting testimony, and to act reasonably and fairly in the absence of prejudicial influences. In this situation there is little, if any, need to defer to the judge as against the jury, and we will not affirm an order granting a new trial unless on review we are satisfied, independently, that the jury verdict was against the great weight of the evidence. When one or more of these factors are absent, however, our "great deference to the court's firsthand experience of the witnesses, their demeanor, and the context of the trial", King v. Exxon Co., 5 Cir. 1980, 618 F.2d 1111, 1116, takes on special importance, and we will affirm a new trial order even if on our own review of the "cold record" we are not convinced that the jury verdict was against the great weight of the evidence. It is enough in this situation that, in view of possible considerations not apparent from the written record, we can perceive a sound basis for the trial judge's finding the verdict against the great weight of the evidence. See 13 Stan.L.Rev. 383, 386 (1961).

The "great weight of the evidence" standard is not easily met. And our standard of...

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