Ferrell v. Whittington, 80-260
| Decision Date | 26 January 1981 |
| Docket Number | No. 80-260,80-260 |
| Citation | 271 Ark. 750,610 S.W.2d 572 |
| Parties | Ricky Gene FERRELL et al, Appellants, v. Frank Jack WHITTINGTON, Appellee. |
| Court | Arkansas Supreme Court |
Pickens, Boyce, McLarty & Watson by James A. McLarty, Newport, for appellants.
Barrett, Wheatley, Smith & Deacon, Little Rock, for appellee.
In this action for personal injuries and property damage suffered by the appellants in a traffic collision, judgment for the defendant, Whittington, was entered pursuant to a jury verdict apportioning negligence in the ratio of 60% in Ferrell, one of the drivers, and 40% in Whittington, the other driver. A motion for a new trial, on the ground that the verdict was against the preponderance of the evidence, was denied. This appeal is solely from that denial and comes to this court as a tort action. Rule 29 (1)(o).
The case is argued as if the test on review were whether the trial court abused its discretion in denying the motion. True, that is the test when the trial judge grants such a motion, finding the verdict to be contrary to the preponderance of the evidence. Smith v. Villarreal, 253 Ark. 482, 486 S.W.2d 671 (1972). But the trial judge is in a far better position than we to weigh the evidence, which he has heard; so if he denies the motion we determine only if the verdict is supported by substantial evidence. Brady v. City of Springdale, 246 Ark. 1103, 441 S.W.2d 81 (1969). The grounds for a new trial were not changed by the Rules of Civil Procedure. Rule 59 and its Reporter's Note 2.
The collision occurred at the intersection of U.S. Highway 64 and State Highway 5, in White county. Whittington was traveling south on Highway 5 and unquestionably stopped in obedience to a stop sign and a flashing red light. Such signals require a motorist to stop and indicate that the other street has the preferential right of way. Ark.Stat.Ann. §§ 75-506(1) and 75-645 (Repl. 1979). There was also a flashing yellow light facing traffic on Highway 64, requiring Ferrell, who was approaching from Whittington's left, to proceed through the intersection with caution. § 75-506(2).
Whittington and his passenger both testified that, after stopping, they looked to their left and saw nothing and looked to their right and saw a car some distance away. Whittington testified he had plenty of time to get across and entered the intersection. He did not see Ferrell's car until he heard the squealing of brakes. The front of Ferrell's car struck the side of the Whittington car with such force that Ferrell's car was "totaled." Whittington testified that he had no way of knowing Ferrell's speed, as he did not see the car, but he said he believed "if the speed had been within the range of the sign down the road, 40 miles per hour, that he could have stopped or gone back of me." After the collision, which momentarily lifted the Whittington car on two wheels, the front of that car was six feet past the center of the intersection.
Ferrell, as the plaintiff, had the burden of proof, but his own testimony, even if accepted, did not negative the possibility of negligence on his part. He said he did not see a speed limit sign as he approached the intersection. A police officer had testified that the yellow caution light was visible from a distance of 500 feet or more. Ferrell said he was traveling 50 to 55 miles an hour when he saw the caution light and began to reduce his speed, but he...
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...denies a motion for a new trial, this court determines only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Likewise, the trial court may enter a judgment n.o.v. if there is no substantial evidence to support the verdict. In ......
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...for a new trial, the court on appeal need determine only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 [26 Ark.App. 96] S.W.2d 572 (1981). As discussed with regard to point three, anticipated profits are recoverable as a consequential damage ......
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...by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Here, we have no problem in holding sufficient evidence exists to support the jury's verdict finding negligence. App......
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Chapter 9 Standards of Review on Appeal
...standard is used. If denied, the appellate court will affirm if substantial evidence supports the verdict. Ferrell v. Whittington, 271 Ark. 750, 751, 610 S.W.2d 572, 573 (1981). Compare Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994) (motion granted), with Dovers v. Stephenson Oi......
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...standard is used. If denied, the appellate court will affirm if substantial evidence supports the verdict. Ferrell v. Whittington, 271 Ark. 750, 751, 610 S.W.2d 572, 573 (1981). Compare Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994) (motion granted), with Dovers v. Stephenson Oi......
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Chapter 9 Standards of Review on Appeal
...standard is used. If denied, the appellate court will affirm if substantial evidence supports the verdict. Ferrell v. Whittington, 271 Ark. 750, 751, 610 S.W.2d 572, 573 (1981). Compare Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994) (motion granted), with Dovers v. Stephenson Oi......