Backer v. Coursey, 72-1688.

• Decision Date: 30 January 1973
• Docket Number: No. 72-1688.,72-1688.
• Citation: 472 F.2d 887
• Parties: Sidney BACKER and Mrs. Sidney Backer, Plaintiffs-Appellees-Cross Appellants, v. James COURSEY and Southern Stamp and Stencil Company, Defendants-Appellees, Kenneth N. Young, Defendant-Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 887 (1973)

Sidney BACKER and Mrs. Sidney Backer, Plaintiffs-Appellees-Cross Appellants, v. James COURSEY and Southern Stamp and Stencil Company, Defendants-Appellees, Kenneth N. Young, Defendant-Appellant-Cross Appellee.

No. 72-1688.

United States Court of Appeals, Fifth Circuit.

January 30, 1973.

Malcolm S. Murray, Murray and Temple, Decatur, Ga., for appellant.

David R. Lewis, Jacksonville, Fla., for Backer.

Hamilton Lokey, Gerald Handley, Atlanta, Ga., for Backer.

Edward W. Killorin, Sewell K. Loggins, Atlanta, Ga., for Coursey and Southern Stamp & Stencil Co.

Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.

PER CURIAM:

This is a diversity case arising out of an automobile accident that occurred in Atlanta, Georgia, on September 11, 1969. After all the evidence had been received, the trial judge granted the motions for directed verdicts filed by plaintiffs and two of the defendants. The case was submitted to the jury only on the issue of damages, for which the remaining defendant was held solely liable. Testing the granting of those motions against the standards of Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365, we find that the entire case should have gone to the jury, and we therefore reverse and remand for a new trial.

The task of "drawing the proper line of demarcation delimiting the role of the jury in civil suits" is one that is not infrequently before us. See, e. g., Jones v. Concrete Ready-Mix, Inc., 5 Cir. 1972, 464 F.2d 1323; Trawick v. Manhattan Life Ins. Co., 5 Cir. 1971, 447 F.2d 1293. The standard for reviewing cases in which the jury has been displaced is clear:

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover\'s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach differing conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses."

Boeing Co. v. Shipman, 5 Cir. 1972, 411 F.2d at 374-375.

Notwithstanding the mandate of Boeing Co. v. Shipman, which was "meant to end the controversy regarding when the jury may be evicted from a case," Jones v. Concrete Ready-Mix, Inc., supra, 464 F.2d at 1326, the motions below were granted. We have studied the record of the evidence adduced, and we think it clear that the one thing about this case that is indisputable is that there are disputed facts. When the factual dispute rises above the level of "a mere scintilla" and satisfies the other criteria of Boeing Co. v. Shipman, the jury, not the judge, is assigned the role of resolving the disagreement. We once again conclude that we have before us a case of unwarranted jury displacement.

The parties basically agree that the collision in question occurred in the following manner: Between 11:00 a. m. and noon on a clear autumn day, Sidney Backer was driving through downtown Atlanta in the second lane from the right on Harris Street. Proceeding in the same direction and in the same lane was Kenneth N. Young, who was driving a car registered in the name of the Great Atlantic Corporation. James Coursey, an employee of Southern Stamp and Stencil Company, was making deliveries for the company and was pedalling its bicycle down the extreme right-hand lane of Harris Street. Harris Street is on an incline near the site of the collision, and Coursey at least partially lost control of the bicycle. Coursey collided with a truck that had slowed in front of him and he either veered to some extent or fell...