Rathbun v. Ward

• Decision Date: 06 December 1993
• Docket Number: No. 93-412,93-412
• Citation: Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (Ark. 1993)
• Parties: Angela Renee RATHBUN, Appellant, v. Deborah WARD, Individually, and as Next Friend of Shannon McDaniels, Apolonio Paul Hernandez and Martha Sue Shepley, Wylladean Richards, Appellees.
• Court: Arkansas Supreme Court

Page 403

866 S.W.2d 403

315 Ark. 264

Angela Renee RATHBUN, Appellant, v.Deborah WARD, Individually, and as Next Friend of Shannon McDaniels, Apolonio Paul Hernandez and Martha Sue Shepley, Wylladean Richards, Appellees.

No. 93-412.

Supreme Court of Arkansas.

Dec. 6, 1993.

Kenneth S. Hixson, Fayetteville, for appellant.

J. Timothy Smith, Fayetteville, for appellees.

CORBIN, Justice.

A Washington County Circuit Court jury assessed 75% of the fault against appellant, Angela Renee Rathbun, and 25% of the fault against separate appellee, Wylladean Richards, for injuries sustained by passengers in Rathbun's automobile when Richards' vehicle rear-ended Rathbun's vehicle.Rathbun presents seven issues on appeal.We find no error and affirm.

I.INSUFFICIENT EVIDENCE OF NEGLIGENCE

Rathbun contends the trial court erred in refusing to grant a directed verdict or judgment notwithstanding the verdict and abused its discretion in failing to grant a new trial as there was substantial evidence to support the jury's finding of Rathbun's negligence.Rathbun argues there was no evidence that she was negligent because she was the driver of the forward vehicle and had the superior right to leave the highway to make a turn on an intersecting driveway.

ARCP Rule 59(a) provides that a new trial may be granted when the verdict or decision is clearly contrary to the preponderance of the evidence.Where such a motion for new trial is denied, the test on appeal is whether there is substantial evidence to support the jury verdict.Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829(1992).Similarly, where a denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict is denied, we must also determine whether the verdict is supported by substantial evidence.Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85(1993);Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37(1992).

In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it.Mankey, 314 Ark. 14, 858 S.W.2d 85;Gipson, 308 Ark. 344, 824 S.W.2d 829;Frantz, 311 Ark. 136, 842 S.W.2d 37.In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury.Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924(1989).

The evidence reveals that on August 21, 1991, Rathbun was operating her Ford Fiesta on State Highway 170 toward Devil's Den State Park.Four teen-aged friends were passengers in her car.As she slowed her vehicle to make a left turn, it was rear-ended by Richards' pickup truck.One of Rathbun's passengers was killed, and another sustained head injuries.The site of the accident was on an up-grade in the highway that curves to the right.

Rathbun testified that she was driving 30 to 35 miles per hour up a mountain and came around a curve to the right.There was a pedestrian on the left side of the road.Rathbun did not know the pedestrian, but one of the passengers recognized him and said, "Stop.There's Todd."Rathbun testified that she down-shifted into second gear and activated her left turn signal.She stated that she did not slow the car abruptly although she may have touched her foot on the brake pedal.She testified she did not look in her rear-view mirror.The next thing Rathbun remembered was the rear of her car being struck by Richards' pickup.Rathbun stated that only three or four seconds elapsed from the time she began slowing down to the time of impact.

The passenger sitting behind Rathbun was Wendy Bigpond.She testified that as they went around the curve, they saw a friend on the side of the road and someone said, "let's stop."She testified the Rathbun vehicle started slowing down and was struck from the rear.

The front passenger was Justin Hamby.He testified that they were driving toward Devil's Den and saw Todd Hanks on the side of the road.He recounted they were looking for a place to pull off the road to stop and give Hanks a ride.Hamby testified that Rathbun's vehicle was not stopped at the time of impact.He was not sure how fast the car was going at the time of impact but said he knew the car was still slowing down.He estimated the Rathbun vehicle was traveling about five miles per hour when the impact occurred.

Richards testified that she had driven that same stretch of State Highway 170 for 15 years since she lived a few miles farther down the road from the point where the accident occurred.She said she knew there was a driveway turning off the highway to the left in this curve.Richards testified that she was traveling 35 to 40 miles per hour prior to the accident and that she saw a pedestrian walking along the left side of the road about 20 feet short of where the shoulder begins to widen.As she approached the curve, she diverted her attention off the highway toward the pedestrian.She thought the pedestrian might have been her brother because he had been having car problems.She testified that she diverted her attention from the highway and looked at the pedestrian long enough to see that he had the wrong hair color and style to be her brother.The pedestrian turned out to be Hanks.Richards stated that after she returned her attention to the highway, she did not have enough time to apply her brakes or to take any kind of evasive action before her pickup crashed into the rear of Rathbun's car.

Shannon McDaniels, who was riding in the middle of the rear seat of Rathbun's vehicle, sustained a head injury and other personal injuries in the accident.She testified at trial that she had no memory of the accident.Paul David Hernandez, who was riding in the right rear seat, died as a result of injuries sustained in the accident.

The pedestrian, Hanks, was walking home from school on the left side of State Highway 170.He testified that he saw the Rathbun car pass him and that the car came to a stop just before impact.

Trooper G.B. Harp is an accident reconstructionist with the Arkansas State Police.He testified the Rathbun vehicle was not stopped in the road at the time of the impact, but was traveling five to seven miles per hour.He testified that Richards should have been able to see the Rathbun vehicle for 324 feet prior to the point of impact and that there was nothing to impair her line of vision.Harp estimated the speed of the Richards' vehicle to be 28 to 43 miles per hour at the time of impact.He stated there were no skid marks from the Richards' vehicle.

Our review of the evidence reveals substantial evidence to support the jury's finding of liability on Rathbun's part.From the foregoing evidence, the jury could have concluded that Rathbun was negligent in driving her vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, that she failed to keep a proper lookout and to maintain control of her vehicle, or that she failed to maintain a proper speed and came to a sudden stop.

There was conflicting testimony as to whether the Rathbun vehicle was stopped or dramatically slowed.It was certainly within the jury's province to weigh the conflicting testimonies of Hanks and Richards that the Rathbun vehicle was stopped with the testimonies of Rathbun, Bigpond, Hamby, and Harp, that the Rathbun vehicle was slowing down at the time of impact.The jury obviously concluded that both drivers, Rathbun and Richards were negligent.The jury assigned fault after hearing all of the testimony by the witnesses while observing their conduct and demeanor on the stand.Both the amount of the verdict and the distribution of fault among the parties are matters within the exclusive province of the jury and we will not substitute our judgment for that of the jury.Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314(1982).

The decision by the trial court denying the motions for directed verdict, judgment notwithstanding the verdict, and new trial are affirmed as there was substantial evidence to support the jury's verdict.

II.EVIDENCE OF RATHBUN'S DRIVER'S LICENSE

Rathbun contends the trial court abused its discretion in allowing opposing counsel to question defendant Rathbun regarding how long she had held a driver's license.On redirect, Rathbun was asked: "You had gotten your regular driver's license when, Ms. Rathbun?"At trial, she objected on grounds of relevance.On appeal, Rathbun argues additionally that A.R.E. Rule 404 prohibits introduction of character traits into evidence in civil cases unless that trait is in issue or it is being offered to reflect upon the veracity of the witness, citing Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12(1989).

We observe that Rule 404 is not applicable here, as the question had nothing to do with either the good or bad character of Rathbun.However, we do not address the merits of this latter argument as it is raised for the first time on appeal.Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799(1993).

Evidence relating to the driving skill and experience of a party is relevant in determining whether that party acted negligently.We cannot say the trial court abused its discretion in allowing the testimony of the length of time Rathbun had been licensed to drive.

III.EXPERT TESTIMONY

Rathbun contends the trial judge abused his discretion by not allowing the opinion of Trooper Harp concerning some gouge marks left on the highway.Trooper Harp was qualified as an expert witness in the field of accident reconstruction.If allowed to do so, he would have explained to the jury that since the gouge marks were straight, they indicated Rathbun's vehicle was moving at the time of impact; had the gouge marks been curved, they would have indicated Rathbun's vehicle was stopped.

We do not...