Boothe v. Holmes, 24949.

Decision Date19 August 1968
Docket NumberNo. 24949.,24949.
PartiesNobie Cooper BOOTHE et al., Appellants, v. James O. HOLMES et al., Appellees.
CourtU.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.

COLEMAN, Circuit 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:

"Q. Now, as you proceeded down Highway 61 South of Natchez, where did you first see this truck you were talking about?
A. I first saw the truck when it came out on my side of the road.
Q. Did you see it as it was coming out on your side of the road or did you see it after it had gotten on your side of the road?
A. I was driving south and all of a sudden this pickup truck came out on my side of the road.
Q. How far away were you?
A. I couldn\'t tell you. There he was, right in front of me.
Q. Did you sound your horn?
A. I do not know.
Q. Did you apply brakes?
A. I do not know.
Q. All you know is you saw the truck?
A. I saw the truck and it was impossible to miss him.
Q. Now, let me ask you this, Mr. Cooper. Were you, did you see him actually moving across the center line, or did you just suddenly look up and there he
A. (Interrupting) He came out on my side of the road, technically broadsided with the cab of his truck in my lane and the tail of his truck behind this other car. He was going towards the ditch that I went in and he cut it back and got parallel with the Mercury and there I was, just all in a matter of a few minutes, seconds; I didn\'t even have time to ask nobody anything. David Mayo says, he\'s gonna hit us, is all the words that were said and I, in our car, and as he said that, I left the road and went into this ravine to keep from hitting him headon.
Q. How much time elapsed, Mr. Cooper, between the time you saw the vehicle, this truck, and the time that Mr. Mayo said —
A. (Interrupting) Just barely seconds —
Q. (Interrupting) Seconds passed between that —
A. (Interrupting) I wouldn\'t say elapsed. He Mayo saw the pickup, I saw the pickup, I am sure my sister, if she had been looking, I don\'t know, but I saw the pickup, he says he\'s gonna hit us, I didn\'t even have time to answer him; I had to do what I had to do and do it immediately and I did, I taken to the ditch to keep from hitting him headon and that\'s the truth, so help me God".

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:

"It was rather fast in happening and, therefore, you didn\'t have time to observe a whole lot. We were traveling, going south. There was a Mercury car and a pickup truck, red Ford pickup truck, meeting us, coming north, and just riding down the road meeting cars, you don\'t particularly pay any attention to the cars, all you know is you\'re meeting them and you assume you are going to pass them. For some reason or other, Mr. Holmes lost control of his pickup. His pickup skidded across in our lane of traffic and in the short few seconds this all took place, he pulled his truck back and it was directly in our lane of travel, all the way across the center line over in our lane, and as we were approaching him, I said, Coop, you are going to hit him, and he didn\'t say anything, but he pulled the car off the road, and by doing this, we went off the road and down in this ravine and came to rest up on the other side of the embankment".

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:

What would you say was the farthest distance that you ever got at the point of this accident west of the center line of this highway?
Well, I say two or three feet.
You never got farther than two or three feet west of the center line?
No, sir.
Never at any time?
No, sir.
* * * * * *
"Well, of course, the rear wheel could have been little over it because I was turning that way.
* * * * * *
"I was getting ready to pass him until I seen this car".

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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4 cases
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Noviembre 1973
    ...covered elsewhere in the court's charge. We are left with the firm conviction that the jury verdict must be reversed. Boothe v. Holmes, 399 F.2d 495, 499-01 (5th Cir. 1968); Lind v. Aetna Casualty & Surety Co., 374 F.2d 377, 380-81 (5th Cir. 1967). A new trial of the unseaworthiness issue u......
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 Febrero 1969 the light of Texas substantive law. Lind v. Aetna Casualty and Surety Co., 5 Cir., 1967, 374 F.2d 377, 380; see Boothe v. Holmes, 5 Cir. 1968, 399 F.2d 495, 500. Our primogenial case is Edmiston v. Texas & N. O. R. Co., Tex.1940, 135 Tex. 67, 138 S.W.2d 526. There Edmiston sued the railr......
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 22 Agosto 1973
    ...makes refusal to grant a new trial an error in law . . ." Indamer Corp. v. Crandon, 5 Cir. 1954, 217 F.2d 391, 393; see Boothe v. Holmes, 5 Cir. 1968, 399 F.2d 495. This is such a It was the defendant's burden to prove contributory negligence but no witnesses or evidence were introduced on ......
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    • U.S. Court of Appeals — Fifth Circuit
    • 12 Enero 1981
    ...of the charge under the law of Georgia. See Castilleja v. Southern Pacific Co., 406 F.2d 669, 670 (5th Cir. 1969); Boothe v. Holmes, 399 F.2d 495, 500 (5th Cir. 1968); Lind v. Aetna Casualty and Surety Co., 374 F.2d 377, 380 (5th Cir. 1967). In Boothe v. Holmes we explained the requirements......

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