Conway v. Chemical Leaman Tank Lines, Inc., 77-2533
| Citation | 610 F.2d 360 |
| Decision Date | 25 January 1980 |
| Docket Number | No. 77-2533,77-2533 |
| Parties | Ruby CONWAY et al., Plaintiffs-Appellees, v. CHEMICAL LEAMAN TANK LINES, INC., Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Dale Dowell, Beaumont, Tex., for defendant-appellant.
Harold Peterson, Wendell C. Radford, Beaumont, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before THORNBERRY, GEE, and HATCHETT, Circuit Judges.
This appeal represents the second appearance of this case before our court, 1 and there have been three trials below one of them unnecessary, as we here conclude. It is a death action having its genesis in the early morning hours of September 14, 1972, when two heavy tank trucks sideswiped each other near the centerline of an East Texas highway. One, that of Dixie Transport, lost its left front tire in the glancing impact and veered off the road to the left, overturning and killing its driver, appellees' decedent.
A jury trial in 1974 resulted in a judgment for plaintiffs-appellees and against the truck line operating the other vehicle. We reversed for reasons, not material here, given in the opinions noted above. A second trial in early 1977 produced a verdict in favor of defendant-appellant predicated on the jury's finding that both drivers were negligent in driving too close to the centerline. For reasons that we discuss more fully below, the trial judge set aside this verdict and ordered still another new trial. It is from the judgment for plaintiffs in this third trial that defendants bring error here, asserting error as well in the court's setting aside the verdict in the second trial and granting a third. Because we conclude that the third trial was erroneously granted, we need not examine the errors complained of in the conduct of that trial.
At the conclusion of the evidence in the second trial, the court prepared and gave the jury a somewhat unusual form of verdict that, with the answers returned by the jury, we reproduce below:
VERDICT OF THE JURY
Do you find from a preponderance of the evidence that the Defendant, Chemical Leaman Tank Lines, Inc., its agents, servants or employees, committed some act or omission of negligence which was a proximate cause of the injuries and death of the deceased, Robert Eugene Conway?
Answer: "Yes" or "No".
ANSWER: Yes.
If you have answered Interrogatory No. 1 "Yes" and only in that event, list below the acts or omissions of negligence you have so found.
We have decided the defendant was too close to center line, as was the plaintiff, causing the collision of mirrors, after which uncontrollable acts by both drivers caused the final collision.
Do you find from a preponderance of the evidence that the deceased, Robert Eugene Conway, committed some act or omission of negligence which was a proximate cause of the injuries and death of the deceased?
Answer: "Yes" or "No".
ANSWER: Yes.
If you have answered Interrogatory No. 2 "Yes", and only in that event, list below the acts or omissions of negligence you have so found.
We have decided the plaintiff was also too close to the center line, causing the collision of mirrors, after which uncontrollable acts by both drivers caused the final collision.
Thereafter, on motion of plaintiffs, the judge set aside the above verdict and granted plaintiffs a new trial by an order reading in material part as follows:
On this 28th day of January, 1977, came on to be considered the Motion of Plaintiffs and Intervenors in the above-referenced case to set aside the verdict of the Jury and to grant a new trial, and the Court, having duly considered same and being fully advised, finds that, Under the law and the evidence, the answers of the jury to Special Interrogatories No. 1 and No. 2 returned on January 7, 1977, Do not support a verdict (sic) Nor a judgment in favor of any party to this cause. The Court further finds that such verdict should be set aside and a new trial should be had in this cause on all issues.
(emphasis added).
Appellant contends that the italicized language of the above order indicates it was entered on a manifestly erroneous legal basis. Appellant correctly notes that, read literally, the order refers to some deficiency in the form of the verdict itself, not to the sufficiency of the evidence to support the verdict. Clearly, however, the jury's answers to the interrogatories are a verdict and Do support a judgment for the defendant. Its answers are neither inherently inconsistent nor conflicting; nor can there be doubt that in the circumstances presented two heavy vehicles meeting on a darkened road driving too close to the centerline can be an act of negligence, especially when each driver can see that the other is doing likewise. Thus, if this interpretation of the order were the only one available to us, we would be compelled to set the order aside and reinstate the jury verdict. The motion on which the court below acted urges evidentiary insufficiency, however, and the order itself does refer, in passing, to the evidence. We shall therefore proceed for purposes of argument on the assumption that the order was predicated at least in part on the ground that the verdict was unsupported by any of the evidence or was against its great weight. Since this assumption yields the same result as would a literal construction that the trial judge erred in setting aside the verdict no harm is done by our taking the only view of the order that does not render it clearly erroneous on its face.
The general standard by which we review trial court orders granting new trials is abuse of discretion. Spurlin v. General Motors Corp.,528 F.2d 612 (5th Cir. 1976). Such a standard recognizes the deference that is due the trial court's first-hand experience of the witnesses, their demeanor, the context of the trial, and the like. This deference is especially appropriate where a new trial is denied and the jury's determinations are left undisturbed. Valley View Cattle Co. v. Iowa Beef Processors, 548 F.2d 1219 (5th Cir. 1977). Recent cases in our circuit apply a somewhat broader review, however, to orders that Grant new trials, mandating the greatest degree of scrutiny where, as apparently here, a new trial is decreed on the ground that the verdict is against the weight of the evidence. See, e. g., Love v. Sessions, 568 F.2d 357 (5th Cir. 1978). We do so to assure that the judge does not simply substitute his judgment for that of the jury, thus depriving the litigants of their right to trial by jury. Id. at 361. In a further effort to avoid such substitutions, we have noted that new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great not merely the greater weight of the evidence. Spurlin v. General Motors Corp., supra at 620. Factors militating against new trials in such cases are simplicity of the issues, the degree to which the evidence was in dispute, and the absence of any pernicious or undesirable occurrence at trial. Ibid. Bearing these considerations in mind, we return to the case at hand.
Here a new trial was granted, and the most favorable view of the order granting it is that the verdict of the jury was in the judge's view against the great weight of the evidence. The factual issue was simple: by whose negligence, if anyone's, did a truck collision come about? In certain critical respects, the evidence was highly conflicting, but in many other respects it was undisputed. The trial was decorous, devoid of any pernicious or undesirable occurrence. All recognized considerations, therefore, direct us toward the closest scrutiny of the evidence permissible in exercising our narrow power of review of the trial court's order.
We begin by recounting that which is undisputed. The accident that resulted in Mr. Conway's death occurred in the dark of an early fall morning on U.S. Highway 90 near the small town of Devers, in East Texas. There U.S. 90 is a straight two-lane road, running east and west, with a center stripe and paved shoulders. Mr. Conway's truck was going west, that of the defendant east. Both vehicles were heavy, semi-trailer-type trucks, but Mr. Conway's was much the heavier, being loaded to a gross weight of about 40 tons, while defendant's was traveling empty at about 14 tons. Each truck was equipped with a "West Coast" rearview mirror protruding twelve to fourteen inches outward from the driver's side of the cab. The first impact between any portion of the vehicles was between these mirrors, glass from which was found on and around the highway's centerline. A second impact followed when the left front wheel of Mr. Conway's tractor grazed the left rear wheel of the defendant's trailer, causing the loss of Mr. Conway's left front tire. His truck then proceeded across the wrong lane and capsized in the far ditch, killing him instantly. Both trucks were traveling at about 55 miles per hour, both drivers were experienced, and the weather was dry and clear. Neither a defective condition of either vehicle nor any outside factor figured in the collision; the trucks simply clipped mirrors and collided glancingly at some point close to the center of the road. By obvious deduction from the mirrors' dimensions, the cabs of the two trucks cannot have been more than about two feet apart at the moment of initial impact but may have been much closer. No physical evidence at the point of initial impact established conclusively where either vehicle was with reference to the centerline, or whether they were running precisely parallel or at a slight angle to each other. With the above rather considerable body of undisputed, pertinent matter, agreement ends.
The disputed area of evidence arises from the effort of each side to establish that the other driver was on the wrong side of the road. Two expert...
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