Boothe v. Holmes, 24949.
|19 August 1968
|Nobie Cooper BOOTHE et al., Appellants, v. James O. HOLMES et al., Appellees.
|U.S. Court of Appeals — Fifth Circuit
George W. Rogers, Jr., Vicksburg, Miss., Daniel R. Atkinson, E. L. Richardson, Baton Rouge, La., for appellants.
Lee Davis Thames, Vicksburg, Miss., Jerome Steen, W. Thad Cochran, Jackson, Miss., for appellees.
Before WISDOM and COLEMAN, Circuit Judges, and MITCHELL, District Judge.
This is a diversity case in which the plaintiffs (appellants here) sued James O. Holmes and his employer, the Ashland Pipeline Company, for personal injuries sustained in a motor vehicle accident on U.S. Highway 61, at a point about thirteen miles north of Woodville, Mississippi, January 30, 1965. The jury verdict was for the defendants. We reverse and remand for a new trial.
At the time and place in question, the appellant, Henry T. Cooper, was driving an automobile in a southerly direction, occupying the west lane of the highway. The other plaintiffs were passengers. The day was clear and cool, and it is not contended that Cooper was exceeding the lawful speed limit. Immediately prior to the accident, the road was relatively straight and level with only a slight curve which did not interfere with forward vision. In the curve the highway was crossed by a rural road which ran in an east-west direction. As they proceeded down the highway, those occupying the front seat of the Cooper automobile saw two approaching vehicles headed north and occupying the east lane of traffic. The first automobile was a white Mercury, driven by Richard Nettles, followed by a red pickup truck owned by the Pipeline Company but driven by its employee, Holmes.
Nettles lives on the intersecting rural road west of Highway 61 and was returning home from work at the Louisiana State Penitentiary. As he approached the intersection he slowed his vehicle with the intention of making a left turn. Holmes thought Nettles was preparing to turn right, so he swung his red pickup to his left and at least partially across the center line of the highway, in front of the oncoming Cooper automobile. According to Holmes, when he saw the oncoming car he immediately cut back into the right lane.
When Cooper saw the red pickup come across into his lane of traffic, he envisioned a headon collision and turned his car to his right, or to the west, leaving the highway and going down an embankment into a ravine, finally stopping against a concrete culvert in the ditch.
As a result of the accident, Mr. Cooper received an injured back and internal injuries, another plaintiff suffered a fractured arm, and a third plaintiff received a fractured leg, torn ligaments in both legs, and a severely sprained right ankle.
No witness testified to no more than a distance of 220 feet between the two vehicles at the time of the turn out. Since Cooper was driving at approximately sixty miles an hour and Holmes was driving at approximately forty miles an hour, the cars were approaching each other at the rate of 160 feet per second, and only 1.38 seconds would have been required to close the gap.
As to be expected in automobile accidents, particularly those which take place within seconds, the parties testified to categorically conflicting versions of what took place.
Cooper testified that the red pickup came entirely across into his lane of traffic "and I had one or two choices to make, not to sideswipe him, but hit him headon, or take to this ravine which is about fifteen feet deep".
The crucial testimony of Cooper in this respect was as follows:
Reverend David Mayo, a passenger on the front seat and owner of the automobile which was being driven at his request and permission, described the accident as follows:
Two other occupants of the Cooper vehicle agreed that the Holmes truck went completely over into the west lane.
On the other hand, the defendant Holmes testified:
"Well, it was a Mercury, I believe, was in front of me and he was kind of angling off the right at this cross-road, so I pulled over about, oh, I guess two feet where I could see around him and I seen this car coming at a high rate of speed, so I pulled back in the line and the car went off on the shoulder and traveled a ways and then went off in the bar pit".
Upon further questioning by the Court, he testified as follows:
We have quoted these excerpts verbatim because they pointedly and graphically illustrate the conflict between the plaintiffs and the defendants as to what really happened. The plaintiffs contended that under the circumstances existing Holmes was negligent in pulling his car into the oncoming lane of traffic and that this proximately caused the accident.
The defense contended that Cooper over-reacted and went into a panic when he saw the approaching truck move momentarily to the west of the center line, and that for this reason he drove his vehicle off the highway and into the ravine, although the width of the west shoulder of the highway could have been utilized to avoid any possible collision. They argued in the Court below, and here, that Cooper's negligence was the sole proximate cause of the accident.
Plaintiffs filed a motion for a new trial, contending that (1) the verdict was against the overwhelming weight of the evidence and (2) that the District Judge erred in failing to grant two requested instructions1 or to otherwise instruct the jury as to their theory of the case. Denial of the motion for a new trial resulted in this appeal, in which the same points are again pursued.
As to the first point, appellants recognize the general rule that this Court will not normally review the denial of a new trial on the ground that the verdict is against the overwhelming weight of the evidence. Nevertheless, they rely on our decision in Indamer Corporation v. Crandon, 5 Cir., 1954, 217 F.2d 391, in which the reluctance to review the denial of a motion for a new trial was reaffirmed, but with the following language added:
"However, the rule is clear that an order denying a motion for a new trial, in a case where the absolute absence of evidence to support the jury\'s verdict makes such refusal an error in law, is subject to review by the appellate courts".
That part of the foregoing direct quotation, "where the absolute absence of evidence to support the jury's verdict", is fatal to the appellants' argument on this point. See also Helene Curtis Industries, Inc. v. Pruitt, 5...
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