Funk v. Deavers, CA

• Decision Date: 07 October 1981
• Docket Number: No. CA,CA
• Citation: 621 S.W.2d 882,3 Ark.App. 56
• Parties: Jerry D. FUNK, Appellant, v. Delbert R. DEAVERS, Appellee. 81-105.
• Court: Arkansas Court of Appeals

Page 882

621 S.W.2d 882

3 Ark.App. 56

Jerry D. FUNK, Appellant, v. Delbert R. DEAVERS, Appellee.

No. CA 81-105.

Court of Appeals of Arkansas.

Oct. 7, 1981.

Burris & Berry by John Burris, Pocahontas, for appellant.

Dan M. Orr, Ash Flat, and H. David Blair, Batesville, for appellee.

CLONINGER, Judge.

Appellant Jerry D. Funk appeals from the decision of the trial court granting appellee Delbert R. Deavers' motion to set aside a jury verdict and grant a new trial. The jury found appellant and appellee equally at fault in a personal injury action and denied damages to appellee.

We hold that the trial court did not abuse its discretion in granting the motion and we affirm.

Appellee was operating his automobile west on a through street in Mammoth Spring and collided with the automobile driven by appellant which was proceeding north on a street marked by a "yield" sign. There was little conflict in the testimony and neither of the parties saw the vehicle of the other until the collision or immediately prior to it.

Ark. Rules of Civil Procedure, Rule 59(a) governs when a motion for a new trial may be granted by the trial court, and provides:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues 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 contrary to the preponderance of the evidence or is contrary to the law In Garrett v. Puckett, 252 Ark. 233, 478 S.W.2d 48 (1972) a motion for new trial based on the old rules of civil procedure was granted by the Court. The case is factually similar to the instant case and the old rule of civil procedure is identical to the new rule governing new trials. The Arkansas Supreme Court stated:

... we only reverse the ruling of the trial judge in setting aside a verdict he finds to be against the preponderance of the evidence when we find that the trial judge has abused his discretion. ...

A trial judge has the advantage of observing the demeanor of witnesses as he hears their testimony before a jury, whereas we must read their testimony from the printed page. Consequently, we do not pass upon the weight of the evidence in determining whether a trial judge has abused his discretion in setting aside a jury verdict and granting a new trial, for we recognize that his opportunity for passing on the weight of the evidence is far superior to ours, and we will not interfere with his judgment unless his discretion has been manifestly abused. Meyer v. Bradley, 245 Ark. 574, 433 S.W.2d 160 ...

We have held...