Cody v. Atkins

• Decision Date: 04 February 1983
• Docket Number: No. 5757,5757
• Citation: 658 P.2d 59
• Parties: Lois M. CODY, Appellant (Plaintiff), v. Alfred ATKINS, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 59

658 P.2d 59

Lois M. CODY, Appellant (Plaintiff), v. Alfred ATKINS, Appellee (Defendant).

No. 5757.

Supreme Court of Wyoming.

Feb. 4, 1983.

Louis A. Mankus, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.

J. Kent Rutledge of Lathrop & Uchner, P.C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellee.

Before ROONEY ^*, C.J., and RAPER, THOMAS, ROSE ^** and BROWN, JJ.

RAPER, Justice.

This appeal arose from a negligence action brought by Lois M. Cody (appellant) against Alfred Atkins (appellee) for injuries she allegedly sustained in an automobile collision between her car and appellee's pickup. Appellant appeals from the judgment on a jury verdict entered by the district court in favor of appellee. The following three issues are raised on appeal by appellant:

"I. Whether the denial of a directed verdict at the close of all the evidence was error when there was no evidence of plaintiff's negligence and ample evidence of defendant's negligence.

"II. Whether the trial court erred in denying a judgement not withstanding the verdict when the jury verdict was clearly contrary to the evidence and the law.

"III. Whether it was error to deny plaintiff a new trial when the jury verdict was not consistent with the evidence presented at trial."

We will affirm.

At about 7:00 o'clock a.m. on the morning of November 13, 1980, appellant's car was struck from behind by a pickup driven by appellee. At the time of the accident appellant was stopped for a red light in the right-hand, west-bound lane of 16th Street at the intersection of 16th Street and Snyder Avenue in Cheyenne, Wyoming. The right front corner of appellee's vehicle struck the left rear corner of appellant's car. In the words of the police officer who investigated the accident, the lane of traffic in which the accident occurred was ice covered and "very slick." It was overcast and snowing lightly at the time the accident occurred but visibility was not impaired. Neither party complained of injuries when questioned by the investigating officer at the accident scene; however, later that day appellant complained of injuries and was taken to the emergency room at Memorial Hospital where she was examined and released. Appellant was subsequently hospitalized and treated for numerous physical complaints that she alleged resulted from the accident.

Appellant brought suit June 5, 1981, complaining that appellee's negligent operation of his vehicle had caused harm to her. On March 1, 1982, appellant filed an amended complaint against appellee. Appellee answered the complaints by admitting that his pickup collided with appellant's car but denying appellant's remaining allegations of negligence, etc.; there were no counterclaims made nor affirmative defenses asserted by appellee. The matter was tried before a six-person jury May 10 and 11, 1982, in the district court in Cheyenne. At the close of appellee's case, appellant made a motion for directed verdict pursuant to Rule 50, W.R.C.P. The district court denied the motion. The jury then, after receiving its instructions and deliberating on the matter, returned a verdict in favor of appellee. Following the trial, appellant made timely motions for a new trial pursuant to Rule 59, W.R.C.P. and for a judgment notwithstanding the verdict pursuant to Rule 50, W.R.C.P. The district court denied both motions; this appeal followed.

I

The first issue appellant raises for our consideration is the propriety of the district court's denial of his motion for a directed verdict made pursuant to Rule 50(a), W.R.C.P. ¹ We will briefly summarize the standard of review we employ when faced with a directed verdict question.

In Town of Jackson v. Shaw, Wyo., 569 P.2d 1246 (1977), this court said:

"In reviewing the grant of a directed verdict by a trial court, consideration must be given to all evidence favorable to party against whom the motion is directed, as well as to all reasonable and legitimate inferences which might be drawn therefrom. [Citations.] Whether or not the evidence so viewed is sufficient to create an issue for the jury is solely a question of law to be answered by the trial court. That court must determine whether or not the evidence is such that, without weighing the credibility of the witnesses, or otherwise, considering the weight of the evidence, there is but one conclusion as to verdict which men of reason could reach. * * * " (Footnote omitted.) 569 P.2d at 1250.

This court, in Carey v. Jackson, Wyo., 603 P.2d 868, 877 (1979), adopted the commentators' view that:

" 'In determining whether a verdict should have been directed, the appellate court applies the same standard as does the trial court in passing on the motion originally. * * * Whether a verdict should be directed is a question of law and on those questions litigants are entitled to full review by the appellate court without special deference to the views of the trial court.' 9 Wright and Miller, Federal Practice and Procedure, Civil, § 2536, p. 595, and § 2524, pp. 541-542."

We also have held that since a directed verdict deprives the parties of a determination of the facts by a jury, such motion should be cautiously and sparingly granted. 9 Wright and Miller, supra § 2524, and see Carey v. Jackson, supra.

In the majority of our decisions in which directed verdicts are at issue, we have dealt with directed a verdicts sought by the defendant; here we are faced with the opposite situation of a plaintiff seeking a directed verdict. In general, the standard in directing a verdict for a plaintiff is similar to the standard used to direct one against him. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2535 (discussing an identical Rule 50(a), F.R.C.P.). However, due to the different burdens of persuasion placed on plaintiffs and defendants, there are some differences. In Mihalchak v. American Dredging Co., 266 F.2d 875 (3rd Cir.1959), cert. denied 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 157, the court, faced with a plaintiff's motion for directed verdict, declared:

"The propriety of directing a verdict in appropriate situations in favor of the party imposed initially with the risk of non-production of evidence seems to be well settled. Yet though a motion for directed verdict in favor of the proponent of an issue is cast in the same form as when made by the defending party, it requires the judge to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding. The ultimate conclusion that there is no genuine issue of fact depends not on a failure to prove at least enough so that the controverted fact can be inferred, but rather depends on making impossible any other equally strong inferences once the fact in issue is at least inferable." (Footnotes omitted.) 266 F.2d at 877.

It is proper to direct a verdict for the plaintiff in those rare cases where there are no genuine issues of fact to be submitted to a jury. Parker v. Pine, Mo.App., 617 S.W.2d 536 (1981). In a negligence action a verdict may be directed for the plaintiff when there is no evidence that would justify a jury verdict for the defendant. Whitly v. Moore, 5 Ariz.App. 369, 427 P.2d 350 (1967). A directed verdict for the plaintiff is proper when there is no dispute as to a material fact, and when reasonable jurors cannot draw any other inferences from the facts than that propounded by the plaintiff. Brown v. Sievers, Wyo., 410 P.2d 574 (1966). In a negligence action, then, we need only determine that there was sufficient evidence to permit a reasonable jury to find that the defendant acted without negligence to hold that appellant's motion was properly denied. We so hold.

In this case appellee presented evidence that the roadway he was traveling on was slippery due to snow and ice; that he had been attempting to slow down and stop to avoid a collision for some 400 feet prior to impact; that he had slowed from 20 m.p.h. to 5 m.p.h. in the 400 feet prior to impact; that he had attempted to drive to the left and avoid the collision; that his ability to stop was further complicated because he was traveling downhill; and that he was in control of his vehicle at all times prior to the collision. Although we were unable to find where appellee had testified in so many words that he had not been negligent, the jury could have properly inferred as much from the evidence we have outlined. Although appellant contends otherwise, the concept of an automobile accident occurring without a finding of negligence is not novel in our jurisprudence. Friesen v. Schmelzel, 78 Wyo. 1, 318 P.2d 368 (1957). The district court could not have, in the face of appellee's evidence showing an absence of negligence, directed a verdict for appellant. Therefore, we hold the district court properly denied appellant's motion for a directed verdict.

II

Appellant next argues that the district court erred in denying her motion for a judgment notwithstanding the verdict (J.N.O.V.) made pursuant to Rule 50(b), W.R.C.P. ² Rule 50(b), W.R.C.P. requires as a prerequisite to seeking a J.N.O.V. that the moving party has previously sought and been denied a directed verdict. As previously noted, appellant had sought and been denied a directed verdict at the close of the evidence; therefore, we reach this issue. Before deciding the issue, however, we first set out the standard of review we shall employ.

In Cimoli v. Greyhound Corp., Wyo., 372 P.2d 170 (1962), this court held that a J.N.O.V. can only be granted where there is an absence of any substantial evidence to support the verdict entered. That same view was expressed in Simpson v. Western National Bank of...