Razorback Cab of Fort Smith, Inc. v. Martin, 92-1459

• Decision Date: 14 June 1993
• Docket Number: No. 92-1459,92-1459
• Citation: 313 Ark. 445,856 S.W.2d 2
• Parties: RAZORBACK CAB OF FORT SMITH, INC., Appellant, v. Richard H. MARTIN, Appellee.
• Court: Arkansas Supreme Court

Page 2

856 S.W.2d 2

313 Ark. 445

RAZORBACK CAB OF FORT SMITH, INC., Appellant, v. Richard H. MARTIN, Appellee.

No. 92-1459.

Supreme Court of Arkansas.

June 14, 1993.

Jack Skinner, Greenwood, for appellant.

Charles Karr, Fort Smith, for appellee.

HAYS, Justice.

Appellee Richard Martin sued appellant Razorback Cab of Fort Smith, Inc., for personal injuries sustained by Martin when he was struck by a Razorback cab. The jury trial ended in a verdict for Razorback, but the trial court granted Martin's motion for a new trial. On appeal we sustain Razorback's contention that the trial court erred in setting aside the verdict.

Around 6:30 on the morning of January 30, 1990, while it was still dark, Richard Martin was riding his bicycle west on Rogers Avenue in Fort Smith. Martin was in the right hand lane next to the curb. Rogers Avenue has four lanes, two each for opposing traffic and a fifth lane in the middle. Martin was wearing dark clothing except for a reflective jogger's vest attached to his back pack. There were no lights on his bicycle but there were reflectors on the front and rear and on the spokes and pedals of the bicycle. The rear reflector, situated under the seat, was obscured by a carrying rack over the rear of the bicycle.

The collision occurred, by some accounts, when Morgan moved to the right lane and struck Richard Martin. On striking Martin, Morgan swerved to his left and in so doing struck the left rear of Sargeant's vehicle which was still in the left-hand lane. Richard Martin suffered injuries and was taken to the hospital.

Richard Martin filed suit against Razorback Cab, seeking damages of $50,000. At the trial all of the aforementioned witnesses testified except O.J. Morgan, who had died. The jury returned a verdict for Razorback, but on a motion for a new trial filed by Richard Martin, the trial court set aside the jury verdict upon a finding that there was no evidence that Morgan could not see the bicycle, that Morgan was negligent in failing to maintain a proper lookout. Razorback appeals from that order.

The law affecting the granting of a new trial and appellate review of that decision is settled. A trial court may not substitute its view of the evidence for that of the jury and grant a new trial unless the verdict is clearly against the preponderance of the evidence. Ark.R.Civ.P. 50(a); Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990). The test we apply on review on the granting of the motion is whether the trial court abused its discretion. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Turrise v. Crane, supra; Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). In Worthington v. Roberts, supra, we noted that "abuse of discretion in granting a new trial means a discretion improvidently exercised," i.e., exercised without due consideration.

There were four witnesses to the accident. Ronnie Martin was a passenger in the front seat of Morgan's cab. In the right-hand lane was Danny Walden, the last of the three vehicles westbound at the time of the accident. Finally, there was John Sergeant, who was in front of Morgan's cab traveling in the left-hand lane.

In addition to the eyewitnesses the testimony of the investigating officer was to the effect that the speed limit was 40 miles per hour, that the bicycle had no lights, front or rear, and while "there was a red reflector underneath the bicycle seat, it would not be visible to the rear." He testified that riding a bicycle at night in Fort Smith without a light is illegal.

One discrepancy in the testimony relates to whether Morgan was in the left-hand lane and struck Martin momentarily after moving to the right hand lane, or whether Morgan was in the right-hand lane for some blocks before striking Martin. Ronnie Martin, Morgan's...