Jones v. Concrete Ready-Mix, Inc., 71-3247.

• Decision Date: 12 October 1972
• Docket Number: No. 71-3247.,71-3247.
• Citation: 464 F.2d 1323
• Parties: William Ray JONES, Plaintiff-Appellant, v. CONCRETE READY-MIX, INC., and W. C. Allred, Defendants-Appellees, Liberty Mutual Insurance Company, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 1323 (1972)

William Ray JONES, Plaintiff-Appellant, v. CONCRETE READY-MIX, INC., and W. C. Allred, Defendants-Appellees Liberty Mutual Insurance Company, Intervenor.

No. 71-3247.

United States Court of Appeals, Fifth Circuit.

August 17, 1972.

Rehearing and Rehearing Denied October 12, 1972.

Jacob D. Guice, Thomas J. Wiltz, Rushing & Guice, Biloxi, Miss., for plaintiff-appellant.

George E. Morse, Gulfport, Miss., Scott Tennyson, Tennyson & Britt, Jackson, Miss., White & Morse, Gulfport, Miss., for defendants-appellees.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 12, 1972.

GOLDBERG, Circuit Judge:

This diversity case, which arose from a vehicular collision at a highway intersection in Ocean Springs, Mississippi, once again places before us the task of drawing the proper line of demarcation delimiting the role of the jury in civil suits. Although recognizing the standard of Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365, the trial judge felt that plaintiff-appellant had not met his burden and accordingly directed a verdict for defendants-appellees. Our own scrutiny of the record, however, convinces us that appellant did produce the quantum of evidence sufficient to require this case to remain within the realm of the jury, and we reverse.

In this action to recover damages for personal injuries, brought in the United States District Court for the Southern District of Mississippi, the facts were sharply disputed. It seems that the only facts agreed upon are that appellant suddenly drove his vehicle forward from a crossroad onto a divided highway directly into the path of appellees' gravelladen tractor-trailer truck, and that appellant suffered grievous bodily harm in the ensuing collision with the oncoming truck. Appellant's principal theory of recovery is that he was lured onto the highway by the negligence of appellee Allred, the truck driver, who allegedly gave indications—the foremost of which was a flashing turn indicator light—that he was about to turn right and exit the highway at the intersection. Appellees' version of the tragic events of that day centers on their assertion that Allred gave no indications of an imminent right turn and that appellees' actions were wholly without negligence.

Whether a blinking electric turn indicator light alone will support a recovery in Mississippi is not clear. We have been cited cases in other jurisdictions denying recovery where a blinking turn indicator was the only evidence of an intention to turn¹ and other cases suggesting that recovery could be had where the turn indicator was the only such indication.² There is a surprising paucity of reported intersection collision cases treating this precise issue. Indeed, one state court observed generally that "the legal effect of possibly deceptive conduct in the giving of turn signals is still in a shadowy area of decisional development." Dotson v. Cantrell, 458 S.W.2d 10 (Ky.Ct.App.1970). However, counsel have directed our attention to a sufficient number of cases to allow us to discern the general status of this area of negligence law.³

It seems uncontroverted that the controlling substantive law would allow a recovery under certain circumstances against one who entices another driver into an intersection by negligently indicating an intention to turn right and that the Mississippi courts would allow a recovery in an action based upon a flashing turn indicator if there were also other indices of an intention to turn. The learned trial judge reached the same conclusion, and we agree that that is the substantive law governing the case. Because Mississippi is a comparative negligence state, see Miss.Code Ann. § 1454 (1942 Recomp.), whether appellant was contributorily negligent in driving into the intersection is not relevant at this stage of the proceedings.

The procedural posture of this appeal presents a single dispositive issue: Did appellant produce evidence of an intention by Allred to turn right sufficient to allow a jury to find that Allred "enticed" appellant into the intersection? If he did, the directed verdict was improper. The standard to be applied in resolving this issue was clearly stated in Boeing Co. v. Shipman, supra:

"On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence—not just that evidence which supports the nonmover\'s case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses."

411 F.2d at 374-375.

We think it apparent that the existence of Allred's intention to turn right could reasonably be inferred by the jury from some combination of four factors: flashing his turn indicator lights, driving in the right-hand lane, slowing...