Druckenmiller v. Cluff
| Decision Date | 11 April 1994 |
| Docket Number | No. 93-734,93-734 |
| Citation | 873 S.W.2d 526,316 Ark. 517 |
| Parties | Sharra DRUCKENMILLER, Appellant, v. Danny J. CLUFF, Appellee. |
| Court | Arkansas Supreme Court |
James Gerard Schulze, Little Rock, for appellant.
Mariam T. Hopkins, Little Rock, for appellee.
This appeal follows a defendant's verdict in an action for negligence arising from a motor-vehicle accident. The appellant, Sharra Druckenmiller, argues two points for reversal, asserting error on the trial court's part in submitting the issue of her own negligence to the jury and in refusing to give AMI Civil 3d, 614, the "sudden emergency" instruction. We hold that the trial court did not err in either instance, and we affirm its judgment.
On September 29, 1990, at about 3:20 p.m., Mrs. Druckenmiller was driving her Honda Accord west on Highway 100, a four-lane, divided thoroughfare, in Maumelle, Arkansas. Appellee Danny J. Cluff was headed east on Highway 100, driving a Freightliner truck owned by his employer, appellee M.S. Carriers, Inc.
At the intersection of Highway 100 and Murphy Road, Mr. Cluff began to make a left turn. Mrs. Druckenmiller was between seventy-five and one-hundred feet away, and, as she subsequently testified, she applied her brakes at a distance of approximately fifty feet from the truck. Her car skidded from the inside to the outside westbound lane and struck the truck. Mrs. Druckenmiller was injured and her vehicle damaged. The police cited Mr. Cluff for failing to yield right-of-way when making a turn.
In her complaint, Mrs. Druckenmiller alleged that Mr. Cluff negligently made a left turn into the path of her vehicle, thereby causing a collision, damages, and personal injuries. The trial court submitted the issue of negligence with respect to both parties to the jury and refused to give a sudden emergency instruction proffered by Mrs. Druckenmiller. The jury rendered a general verdict in favor of Mr. Cluff and M.S. Carriers, Inc.
On appeal, Mrs. Druckenmiller first contends that the trial court erred in submitting the issue of her negligence to the jury in the absence of any substantial evidence that she was guilty of any fault. She maintains that the photographic exhibits show that there is a straight stretch of road for a substantial distance before the intersection of Highway 100 and Murphy Road, rendering it improbable that she could have been going fast enough for Mr. Cluff not to have seen her approaching as he turned.
The trial court instructed the jury, under AMI Civil 3d, 203, that Mrs. Druckenmiller had the burden of proving that she sustained damages, that Mr. Cluff and M.S. Carriers were negligent, and that such negligence was a proximate cause of her damages. The court also employed AMI Civil 3d, 206, in instructing the jury that Mr. Cluff and M.S. Carriers asserted that Mrs. Druckenmiller was guilty of negligence which was a proximate cause of her own injuries and that they bore the burden of proving their contention.
To aid the jury in its determination of negligence on the part of either driver, the trial court read AMI Civil 3d, 901, which permits consideration of the following rules of the road:
First, it is the duty of the driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under the circumstances similar to those shown by the evidence in this case; and
Second, it is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.
A failure to meet the standard of conduct required by either of these rules is negligence.
In addition, the trial court read AMI Civil 3d, 903, allowing the jury to consider as evidence of negligence the violation of the following statutory provision:
The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard. The driver, after having so yielded and having given a signal when and as required by this chapter, may make the left turn after all other vehicles approaching the intersection which constitute an immediate hazard shall have cleared the intersection.
Ark.Code Ann. § 27-51-502 (1987).
Reading AMI Civil 3d, 2102, the trial court offered the jurors four options:
If you should find that the occurrence was proximately caused by the negligence on the part of Danny Cluff and not by the negligence on the part of Sharra Druckenmiller, then Sharra Druckenmiller is entitled to recover the full amount of any damages you may find she has sustained as a result of the occurrence.
If you should find that the occurrence was proximately caused by the negligence of both Sharra Druckenmiller and Danny Cluff, then you must compare the percentage of their negligence.
If the negligence of Sharra Druckenmiller is of less degree than the negligence of Danny Cluff, then Sharra Druckenmiller is entitled to recover any damages which you may find she has sustained as a result of the occurrence after you have reduced them in proportion to the degree of her own negligence.
On the other hand, if Danny Cluff was not negligent or if the negligence of Sharra Druckenmiller is equal to or greater in degree than the negligence of Danny Cluff, then Sharra Druckenmiller is not entitled to recover any damages.
The jury returned a general verdict in favor of Mr. Cluff and M.S. Carriers.
This verdict, in effect, was a declaration that the jury had concluded either that Mrs. Druckenmiller had not met her burden of proof that Mr. Cluff was negligent or that her own negligence was equal to or greater than any negligence assessed against Mr. Cluff. This court will affirm the verdict and judgment of the trial court if the verdict is supported by any substantial evidence; the question is not whether the evidence would have supported some other conclusion but whether it supports the conclusion reached by the trier of fact. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).
The record of trial shows that Mrs. Druckenmiller, by her own testimony, provided a substantial evidentiary basis for the trial court to submit the issue of her negligence to the jury. For example, the following dialogue transpired during her cross-examination:
Q Mrs. Druckenmiller, I want to take you a minute back to the day of the accident so we can make sure we understand what your testimony is about how the accident occurred. I think we all agree you were traveling on the inside lane closest to the median, is that correct?
A Yes.
Q And you first saw Mr. Cluff approximately 75 to 100 feet away, is that correct?
A Yes.
Q Okay. And if I understand your testimony correctly from direct examination, are you saying you saw him in the middle of the intersection at that point?
A No, he was pulling out into the intersection.
Q Okay. In any event, you saw him moving into the intersection about 75 to 100 feet away?
A Yes.
Q Okay. And you thought, at that point, that he was going to stop and you could just go on straight around his truck?
A Yes. I thought at that point that he saw me and that I would be able to manuever around in front of him.
Q Okay. So despite the fact that he was in the intersection, you made the decision to continue on toward the intersection, is that correct?
A Yes.
. . . . .
Q So, Mrs. Druckenmiller, you saw him doing that and you made the decision to continue on because you thought you could get around him, is that correct?
A Yes.
Q And you did not actually start applying your brakes until you were about 50 feet away from Mr. Cluff, is that correct?
A I had started applying my brakes. I did not have to slam on my brakes that--
Q Okay. You first started applying your brakes when you were approximately 50 feet away from Mr. Cluff, is that correct?
A Yes.
(T. 170-171) The jury could have concluded from the testimony that Mrs. Druckenmiller's collision resulted from her waiting to apply her brakes until she was approximately fifty feet away from Mr. Cluff's vehicle after having seen the truck turning at a distance of seventy-five to one hundred feet.
Moreover, photographic evidence provided a basis for the jury to conclude that Mrs. Druckenmiller failed to keep her vehicle under control--the duty addressed by AMI 901. As she testified, she was traveling in the inside lane next to the median when she saw Mr. Cluff's truck in the intersection. The photographs of the accident site show that Mrs. Druckenmiller's car skidded from the inside to the outside lane before colliding with the truck.
As for Mr. Cluff's actions, the evidence presented was sufficient to enable the jury to determine, under AMI 903, incorporating Ark.Code Ann. § 27-51-502, that the truck driver had yielded right-of-way to "all vehicles" that constituted an "immediate hazard." Mr. Cluff testified that no vehicles were approaching from the opposite direction at the time he began making his left turn in the intersection. Indeed, he stated that he allowed two cars to pass by before he started turning. It was his belief, he stated, as an experienced driver, that he could see far enough down the road in order to make a turn safely.
It is the prerogative of the jury to believe or disbelieve the testimony of any witness. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). Further, the jury may choose simply to believe a portion of the testimony of each party. Johnson v. Clark, 309 Ark. 616, 832 S.W.2d 254 (1992). Here, the jury implicitly found that Mrs. Druckenmiller's claim that Mr. Cluff's negligence was the proximate cause of the collision was not credible.
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