Jones v. Nelson, No. 72-1891.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBREITENSTEIN, HILL and DOYLE, Circuit
Citation484 F.2d 1165
PartiesHenry Clayton JONES and Royal Globe Insurance Company, Plaintiffs-Appellants, v. Joy E. NELSON and Robert M. Nelson, Defendants-Appellees.
Decision Date31 August 1973
Docket NumberNo. 72-1891.

484 F.2d 1165 (1973)

Henry Clayton JONES and Royal Globe Insurance Company, Plaintiffs-Appellants,
v.
Joy E. NELSON and Robert M. Nelson, Defendants-Appellees.

No. 72-1891.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 25, 1973.

Decided August 31, 1973.


484 F.2d 1166

Ben A. Goff, Oklahoma City, Okla., for plaintiffs-appellants.

Charles C. Baker, Tulsa, Okla., for defendants-appellees.

Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.

HILL, Circuit Judge.

In this diversity action Henry Jones appeals the trial court's order granting summary judgment for appellees Joy and Robert Nelson. The facts indicate that Mrs. Nelson was involved in an automobile accident while traveling to New Mexico to visit her husband, who was stationed on active duty at Holloman Air Force Base. Apparently Mrs. Nelson was driving in a westerly direction when she came up behind a semi-truck driven by Jones. After passing this truck but while still in the process of returning to the righthand lane of travel, her vehicle swerved into the left front end of the truck. As a result,

484 F.2d 1167
both vehicles were damaged and Jones suffered serious personal injuries

Appellants contend the appellees' negligence consisted of the following: failure to keep a proper lookout; operating the vehicle at a high and excessive rate of speed; failure to exercise ordinary care; and failure to safely overtake and pass the vehicle driven by Jones. The appellees in their answer denied these allegations and raised the affirmative defenses of unavoidable accident, sudden emergency, and contributory negligence. Depositions of Jones and Nelson were then taken. Jones' testimony was that although Nelson was not speeding when she passed him, it appeared that she either experienced a blowout on one of her tires and overreacted by cramping the wheels to the right, or she had misjudged the proximity of the two vehicles while changing back into the righthand lane immediately prior to the blowout. Jones admitted that he did not know positively how Nelson reacted to the situation. Nelson's deposition stated that she was a reasonable distance in front of the truck when she began switching into the righthand lane. She testified a blowout on the left rear tire caused her car to spin into the right lane, and although she tried to keep the car headed straight she was unable to do so.

After pre-trial conference and reading through both depositions, the trial court determined there was no genuine issue as to any material fact, and on September 27, 1972, granted summary judgment for appellees. Appellants on October 6 filed a motion for a new trial, and in support of their motion offered the affidavit of an expert in accident reconstruction. The expert stated that in his opinion a blowout upon the left rear wheel would cause the automobile to rotate around this wheel in a counterclockwise direction. Thus if the car rotated clockwise as testified by Nelson and Jones, it would be the result of driver manipulation rather than any natural forces stemming from the tire blowout. Despite this affidavit, the motion was overruled on October 18, 1972. On November 17 appellants filed their notice of appeal from the trial court's denial of the motion for new trial.

At the outset there are several jurisdictional problems which must be resolved before entertaining this case on its merits. We first note that appellants filed a motion for new trial with the district court after summary judgment was granted. Technically this motion was improper as no trial was conducted from which a new trial motion could be filed. Summary judgment is not a substitute for trial. Ando v. Great Western Sugar Co., 475 F.2d 531 (10th Cir. 1973);...

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64 practice notes
  • Lenard v. Argento, Nos. 80-2602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 15 Febrero 1983
    ...motion to reconsider has been held to qualify as a Rule 59(e) motion. Richerson v. Jones, 572 F.2d 89, 93 (3d Cir.1978); Jones v. Nelson, 484 F.2d 1165, 1167-68 (10th Cir.1973); 9 Moore's Federal Practice p 204.12, p. 4-67 (1982). Thus, a timely motion to reconsider postpones the running of......
  • Sierra Club v. Block, Civ. A. No. 84-K-2.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 25 Noviembre 1985
    ...and of the Tenth Circuit's instruction that any relief afforded pursuant to Fed.R.Civ.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). There are, however, no material issues of fact relating to the question of whether the reserved rights exist in the ......
  • Schmude v. Sheahan, No. 00 C 4580.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 Mayo 2004
    ...A Rule 59(a) motion is inappropriate when a case, such as this,1 has been decided on the Page 653 pleadings. See, e.g., Jones v. Nelson, 484 F.2d 1165, 1167 (10th Cir.1973) (indicating that motion for new trial, seeking relief from an adverse ruling on summary judgment, "[t]echnically ......
  • Tafoya v. Adams, Civ. A. No. 84-K-1535.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 8 Julio 1985
    ...drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to Fed.R.Civ.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual iss......
  • Request a trial to view additional results
64 cases
  • Lenard v. Argento, Nos. 80-2602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 15 Febrero 1983
    ...motion to reconsider has been held to qualify as a Rule 59(e) motion. Richerson v. Jones, 572 F.2d 89, 93 (3d Cir.1978); Jones v. Nelson, 484 F.2d 1165, 1167-68 (10th Cir.1973); 9 Moore's Federal Practice p 204.12, p. 4-67 (1982). Thus, a timely motion to reconsider postpones the running of......
  • Sierra Club v. Block, Civ. A. No. 84-K-2.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 25 Noviembre 1985
    ...and of the Tenth Circuit's instruction that any relief afforded pursuant to Fed.R.Civ.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). There are, however, no material issues of fact relating to the question of whether the reserved rights exist in the ......
  • Schmude v. Sheahan, No. 00 C 4580.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 Mayo 2004
    ...A Rule 59(a) motion is inappropriate when a case, such as this,1 has been decided on the Page 653 pleadings. See, e.g., Jones v. Nelson, 484 F.2d 1165, 1167 (10th Cir.1973) (indicating that motion for new trial, seeking relief from an adverse ruling on summary judgment, "[t]echnically ......
  • Tafoya v. Adams, Civ. A. No. 84-K-1535.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 8 Julio 1985
    ...drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to Fed.R.Civ.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual iss......
  • Request a trial to view additional results

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