Missouri Pac. R. Co. v. Clark

• Decision Date: 05 May 1969
• Docket Number: No. 5--4874,5--4874
• Citation: 440 S.W.2d 198,246 Ark. 824
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Cleo M. CLARK, Appellee.
• Court: Arkansas Supreme Court

Page 198

440 S.W.2d 198

246 Ark. 824

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Cleo M. CLARK, Appellee.

No. 5--4874.

Supreme Court of Arkansas.

May 5, 1969.

William J. Smith and W. A. Eldredge, Jr., Little Rock, for appellant.

Fred Livingston, Batesville, and McMath, Leatharman, Woods & Youngdahl, Little Rock, for appellee.

JONES, Justice.

This is an appeal from a judgment of the Independence County Circuit Court setting aside a jury verdict and granting a new trial, in a personal injury suit brought by Cleo M. Clark against the Missouri Pacific Railroad Company. The question is whether the trial court abused its discretion in setting aside the verdict and granting a new trial.

Cleo M. Clark was employed by Rangaire Corporation at its limestone quarry in Izard County, Arkansas. The Missouri Pacific Railroad Company had constructed, and continued to help maintain, a spur track from its main line track through a cattle guard and upgrade to the quarry operations. The railroad company would switch railroad hopper cars from its main line to the end of the spur beyond the loading tipple at the quarry, and the empty cars were then moved by gravity, as they were needed, back to the loading tipple where they were loaded with limestone. After the cars were loaded, they were coupled together in pairs and moved by gravity, two at a time, downhill to where they were left standing on the end of the spur near the main line until they were picked up and pulled away by Missouri Pacific. It was a part of Clark's duties to ride the loaded cars from the loading tipple down to the main track where he coupled them to the loaded cars already set out on the end of the spur.

In removing the loaded cars from the quarry to the main line, they moved by gravity, and Clark rode the front end of the car in front and controlled their speed by the hand brake on the front car. The moving cars were permitted to strike the stationary cars with sufficient force to 'make up' the coupling. There was a rather sharp curve in the spur track near a cattle guard close to the main line and the outside rail on this curve was not superelevated. On the day of Clark's injury, six loaded cars had been set out near the main line and the hand brakes had been set on three of them. As Clark brought two additional loaded cars, coupled together, down the spur track from the quarry, he was riding on the front end of the front car as usual, and as this car struck the first of the six stationary cars, the couplings failed to make proper connection but missed each other completely and as the ends of the two cars came together Clark was caught between the two cars and injured.

Following the accident it was found that the outside rail in the curve on the spur track had twisted over, drawing the spikes from the crossties on the inside of the outside rail and leaving the wheel flanges of the front truck on the outside of the curve resting on the web of the turned rail between the ball and the turned up flange of the rail. The wheels on the opposite side of the truck dropped from the rail on the inside of the curve and three of the crossties were marked by the flanges of the wheels on that side. After the accident the wheels of the truck on the collision end of the stationary car were found in the same position on the rails as were the wheels on the moving car. The drawn spikes, the marked crossties, the twisted rail and the impact between the cars occurred near the cattle guard and on the curve in the track. The physical damage to the track extended from the quarry side of the cattle guard twelve or fourteen feet through the cattle guard to where Clark was removed from between the ends of the two cars.

Clark filed suit against the railroad company for personal injuries alleging negligence in failure to properly elevate the outside rail on the curve, and in failure to properly maintain the track, resulting in the rail twisting over under the weight and normal slow speed of the car and thereby causing the couplers on the two cars to bypass each other upon impact. The railroad company answered by general denial and the allegations of assumption of risk and contributory negligence in Clark's failure to apply proper brake restraint on the moving cars and permitting them to gather more speed than the track was designed to take, and in Clark's failure to align the couplers so that they would properly meet and 'make up' on impact and not bypass each other in the curve.

Prior to the trial of the case, the discovery deposition of Clark had been taken and portions of the deposition were copied on separate paper by the railroad company attorney. Clark testified at the trial and parts of his deposition were also read into evidence. Neither actual deposition nor the excerpts therefrom were offered as exhibits in evidence at the trial. During the argument to the jury the railroad company's attorney gave to the jury the excerpts he had prepared from the discovery deposition without first presenting the document to Clark's attorney for inspection or to the court for approval. The instrument presented to the jury contained the same questions and answers that had been read into evidence but not in the same order. No objection was made to this procedure by Clark's attorneys and no instruction or admonition was requested thereon.

The railroad's motion for a directed verdict was overruled by the court, and the jury returned a verdict on interrogatories finding Clark 80% negligent and the railroad company 20% negligent. The jury found that Clark had sustained damages in the amount of $32,720.00. Clark filed a motion for a new trial alleging prejudice by the placing of the excerpts from the deposition in the hands of the jury and for the further reason that the apportionment of the negligence was contrary to the preponderance of the evidence. The motion for a new trial was granted by order of the trial court in general terms, and on appeal to this court, the railroad company relies upon the following points for reversal:

'I. The trial court erred in granting appellee Clark a new trial, because:

A. To affirm the granting of a new trial under circumstances presented by this record would accord trial courts unlimited discretion in setting aside jury verdict.

B. Appellant's argument was proper.

C. Appellee waived any error in appellant's argument by neither objecting thereto nor requesting a mistrial prior to the jury's verdict.

D. Appellee failed to support his motion for new trial by affidavits as required by law.

II. Appellant's motion for a directed verdict should have been granted.'

The question here is not the amount of discretion we would accord trial courts by affirming this case. The question is whether the trial court abused the discretion it already had in granting a new trial in this case. We are of the opinion that the trial court did not abuse its discretion.

While the motion for a new trial emphasizes the alleged impropriety of argument the appellant's attorney made to the jury, the motion for a new trial also states as a ground therefor, that the verdict was contrary to the preponderance of the evidence.

The appellant states in its brief that a reading of appellee's motion clearly reflects that appellee sought and received a new trial because of alleged misconduct by appellant's attorney in preparing and presenting to the jury the Xerox copy of portions of appellee's deposition, and the appellant argues that lack of verification as required by Ark.Stat.Ann. § 27--1905 (Repl.1962) was fatal to appellee's motion for a new trial. We find no merit in this contention. We have read appellee's motion for a new trial, as well as the court's order granting it, and we do not share appellant's conviction that the motion was granted because of alleged improper argument to the jury. The pertinent portions of the motion are as follows:

'(1) The movant was prevented from having a fair trial by reason of irregularity in the proceedings of the court when Mr. William Eldredge, the attorney for the defendant, at the beginning of his closing argument handed to each juror copies of the attached memorandum without first having submitted same either to the court or to the opposing counsel. * * *

(4) The plaintiff further moves for a new trial on the ground that, the answers to the interrogatory dealing with the negligence of Clark and the apportionment of such negligence is contrary to a preponderance of the evidence * * *' The order granting the motion for a new trial provides:

'On this 27th day of May, 1968, there comes on to be heard the motion of the plaintiff for a new trial under the provisions of Ark.Stats.Sec. 27--1901, and the Court having considered the motion and having heard the arguments of counsel finds that the motion should be granted. IT IS THEREFORE CONSIDERED ORDERED AND ADJUDGED that the verdicts rendered herein on interrogatories submitted to the jury by the Court should be set aside and that the plaintiff be and he is hereby granted a new trial of the above styled cause.'

As to the preponderance of the evidence, it would serve no useful purpose to quote extensively from the testimony, because we do not go into the preponderance of the evidence on which the trial court grants or refuses a motion for a new trial. We do not examine a record to determine what we would have done had we been sitting in the place of the trial judge, we examine the record for a determination of whether the trial court abused his discretion in taking the action he did. The appellee contends in this case that faulty track, under the weight of the cars, was the sole cause of the accident, and the appellant contends that it was solely caused by the excessive speed of the cars being moved by the appellee. Both the appellant and the appellee offered some testimony, and rather substantial circumstantial evidence, tending to sustain their respective theories.

The appellee testified...