Carlew v. Wright, 02-1387.

• Decision Date: 19 February 2004
• Docket Number: No. 02-1387.,02-1387.
• Citation: 148 S.W.3d 237,356 Ark. 208
• Parties: Jerry CARLEW v. Evie WRIGHT.
• Court: Arkansas Supreme Court

148 S.W.3d 237

356 Ark. 208

Jerry CARLEW v. Evie WRIGHT.

No. 02-1387.

Supreme Court of Arkansas.

February 19, 2004.

David A. Hodges, Little Rock, for appellant.

McMath Woods, PA, by: Paul E. Harrison, Little Rock; and John Patterson, for appellee.

RAY THORNTON, Justice.

On May 5, 1999, a vehicle driven by appellant, Jerry Carlew, collided with an automobile driven by appellee, Evie Wright. The accident occurred when appellant pulled out of a parking lot and attempted to cross two eastbound lanes of Race Street in Searcy in order to complete a left turn into two westbound lanes. After exiting the parking lot, appellant's vehicle was struck in the second eastbound lane by appellee's automobile. A truck was traveling in the first eastbound lane beside appellee's automobile. Because the truck was between them, neither appellant nor appellee saw each other until the vehicles were close together in appellee's eastbound lane.

On August 11, 2000, appellee filed a negligence action against appellant. In her complaint, appellee alleged that appellant's negligence during the accident caused her to suffer injuries and to incur damages. In August of 2002, a jury trial was held to consider appellee's complaint. After hearing the evidence, the jury found in favor of appellee and awarded her $72,000 in damages. In its apportionment of liability, the jury found appellant to be sixty percent at fault and appellee to be forty percent at fault. Based on this apportionment, appellee's damages were reduced to $43,200.

On August 21, 2002, appellee filed a motion seeking a new trial. In her motion, appellee argued that the jury's verdict was not supported by a preponderance of the evidence. After holding a hearing on appellee's motion, the trial court entered an order granting the request for a new trial.

It is from this order that appellant appeals. We affirm the trial court's order granting a new trial.

In his first point on appeal, appellant asserts that the trial court abused its discretion when it granted appellee's motion for a new trial. Rule 59 of the Arkansas Rules of Civil Procedure governs motions for a new trial. The Rule provides:

A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: ... (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.

Id. We have explained that when determining whether a new trial is merited pursuant to this rule, the trial court has limited discretion because it may not substitute its view of the evidence for the jury's except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). The trial court may grant a new trial when a miscarriage of justice has occurred. Id. In reviewing the trial court's granting of a motion for new trial, the test is whether the judge abused his or her discretion. Id. We have explained that this standard requires a showing of "clear" abuse, or "manifest" abuse by acting improvidently or thoughtlessly without due consideration. Id. Finally, we have noted that a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.

Mindful of the applicable standard of review, we must consider whether the trial court abused its discretion when it granted appellee's motion for a new trial. In its order granting appellee's motion, the trial court wrote:

After hearing the arguments of counsel, carefully considering all applicable pleadings, attached exhibits, and the evidence as adduced at the time of trial, the court makes the following findings:

(1) That the verdict of the jury was clearly contrary to the preponderance of the evidence, to the degree that it shocked the court, and resulted in a miscarriage of justice.

A review of the evidence presented at trial is useful in our determination of whether the trial court abused its discretion in granting appellee's motion for a new trial. At trial, appellant explained how the accident occurred. He testified that prior to the accident, he was at a stop sign attempting to turn left out of a parking lot, and that he was planning to travel in a westbound direction. Appellant characterized the traffic as heavy and explained that he could not see appellee's car because a truck was in a lane between the two vehicles. After waiting briefly, he pulled out into traffic and encountered appellee's vehicle, which was traveling in the eastbound inside lane. Appellant noted that appellee's automobile was "very close" before he saw it and that appellee did not have an opportunity to avoid the collision. He testified that the accident was an "error in judgment" on his part. Appellant also testified that he believed that appellee "did nothing wrong in the operation of her vehicle."

Officer Charlie Perry, from the Searcy Police Department, investigated the accident and testified about his findings during the trial. At the scene of the accident, appellant informed Officer Perry that the accident occurred when he was attempting to make a left turn out of the parking lot. Appellant told Officer Perry that when he turned into the eastbound traffic, his view was obstructed and that he did not see a vehicle in the inside lane. Officer Perry also testified that the debris from the accident was found in the inside eastbound lane.

Appellee also described the accident. She testified that prior to the accident she was traveling eastbound at a rate of thirty-five miles per hour. Appellee was driving beside a truck, which was in the outside eastbound lane, and explained that she did not see appellant's automobile until it was "directly in front" of her, immediately before the collision occurred.

At the close of the evidence, the trial court gave the following jury instructions:

In determining whether the driver of a motor vehicle was negligent you may consider the following rules of the road:

It is the duty of the driver of a motor vehicle to keep a lookout for other vehicle or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case.

A failure to meet the standard of conduct required by this rule is negligence.

There was in force in the State of Arkansas at the time of the occurrence a statute which provided:

The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on the highway.

A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

After reviewing the evidence presented at trial, and after considering the foregoing jury instructions, we conclude that the trial court did not abuse its discretion in granting appellee's motion for a new trial and in finding that the verdict was clearly contrary to the preponderance of the evidence. The trial court did not abuse its discretion because the overwhelming evidence established that appellant's negligence was the cause of the accident. Specifically, the evidence established that appellant's failure to maintain a proper lookout and his failure to yield the right-of-way to appellee's vehicle caused the accident. No evidence was presented that would have attributed any of the liability to appellee¹. In fact, appellant testified that appellee was not at fault and that an error in his judgment led to the accident. Notwithstanding this lack of evidence, the jury apportioned forty percent of the fault for the accident to appellee. Under these circumstances, we cannot say that the trial court abused its discretion in granting appellee's motion for a new trial. See Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987) (holding that a new trial was properly granted when the verdict was clearly against the preponderance of the evidence in a case in which the jury was given a comparative-fault instruction); see also Connor v. Bjorklund, 833 A.2d 825 (R.I.2003); Jones v. Idles, 114 S.W.3d 911 (Tenn.2003); Barnard v. Himes, 719 N.E.2d 862 (Ind.App.1999)².

In his second point on appeal, appellant contends that the trial court erred when it entered an order making certain findings. Appellant asserts that these findings were erroneous because they were entered "without conducting a hearing and based solely on comments made by [appellee's] counsel." The challenged findings were made in an order granting appellant's motion for a continuance. Appellant requested a continuance because Farm Bureau did not enter its appearance as appellant's counsel until approximately one month before the case was scheduled for trial. Farm Bureau's late entry into the case was based on a prior erroneous determination that appellant's policy did not cover the accident. When Farm Bureau discovered the error, an entry of appearance was filed by appellant's attorney, who also filed a motion seeking to continue the trial. A hearing was held on the motion. During the hearing, appellant's attorney outlined the events surrounding Farm Bureau's actions. Thereafter, the trial court granted appellant's motion for a continuance and made findings that criticized Farm Bureau's delay in not timely acknowledging coverage, and suggested that a hearing on sanctions...