Stanley v. Calico Rock Ice & Electric Company

• Decision Date: 24 November 1947
• Docket Number: 4-8334
• Citation: 205 S.W.2d 841,212 Ark. 385
• Parties: Stanley v. Calico Rock Ice & Electric Company
• Court: Arkansas Supreme Court

205 S.W.2d 841

212 Ark. 385

Stanley v. Calico Rock Ice & Electric Company

No. 4-8334

Supreme Court of Arkansas

November 24, 1947

Appeal from Izard Circuit Court; John L. Bledsoe, Judge.

Affirmed.

Ernie E. Wright and Oscar E. Ellis, for appellant.

Dene H. Coleman, for appellee.

OPINION

Minor W. Milwee, Justice.

Appellant, Alta May Stanley, brought this action as the natural guardian and next friend of her minor daughter Maxine Shipman, against appellee, Calico Rock Ice & Electric Company, to recover damages for the death of Sam Shipman, the father of Maxine. Sam Shipman was divorced from appellant, Alta May Stanley, in 1939. Appellant, Lela Shipman, is the widow of Sam Shipman, deceased, and the stepmother of Maxine Shipman. She was made a defendant in the complaint of Alta May Stanley, and filed a pleading in which she adopted the allegations of the complaint and asked for judgment against appellee.

The complaint alleged that Sam Shipman was electrocuted on August 5, 1945, because of the negligence of appellee, as follows "That said defendant was negligent in permitting a defective transformer to exist and remain unrepaired in the vicinity of the place where the deceased was constructing his home. The exact nature of the defects being to plaintiffs unknown. That by reason of such defective transformer and negligence on the part of the defendant a dangerous amount of electric current highly in excess of 110 volts was permitted to flow through the line leading to the deceased's garage and into the electric cord; and this highly excessive amount of current caused the deceased's death.

"That the defendant, Calico Rock Ice & Electric Company, Incorporated, knew, or by the exercise of ordinary care should have known, that said transformer was defective and dangerous and that the condition existing constituted a menace and danger to the lives and property of many people, including the deceased, in the vicinity of such transformer. The defendant, Calico Rock Ice & Electric Company, Incorporated, was negligent in its failure to properly repair or replace the defective transformer and in permitting a dangerous and excessive amount of current to flow into the wires upon deceased's premises and the negligence of said defendant was the direct and proximate cause of the deceased's death."

The answer of appellee denied the allegations of the complaint and pleaded contributory negligence on the part of the deceased.

At the close of the testimony on behalf of appellants and at the conclusion of all of the testimony, the trial court denied a request for an instructed verdict in favor of appellee. The jury returned a verdict for appellant, Alta May Stanley, in the sum of $ 2,500 and for appellant, Lela Shipman, in the sum of $ 500. Appellee then filed a motion for a judgment in its favor notwithstanding the verdict. The trial court treated this motion as a motion for a new trial and sustained the same, entering an order granting appellee a new trial. Pursuant to the provisions of § 2735 of Pope's Digest, appellants excepted and filed notice of appeal, consenting that judgment absolute should be rendered against them in this court, if the order granting appellee a new trial should be affirmed.

The order of the trial court granting the motion for a new trial does not state the specific ground upon which such action was taken. Since, however, the effect of the motion filed by appellee is to allege the insufficiency of the evidence to sustain the verdict, we must affirm the action of the trial court, if it can be supported on this ground. Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W.2d 19.

For reversal of the judgment sustaining the motion for a new trial appellants say in their brief: ". . . . if there is such evidence in this record as would have caused this Court to affirm this case if the appeal had been by the appellee, who was the defendant below against whom the verdict of the jury was returned, this case will now be reversed because the verdict was supported by sufficient evidence and the court below was in error in holding otherwise and ordering a new trial." In the cases cited by appellant in support of this argument the trial court had overruled, instead of granting, a motion for a new trial by the defendant. The trial court thus gave its approval to the judgment by refusing to grant a new trial on the ground that the verdict is contrary to the evidence. In such cases this court has uniformly upheld the verdict where there is any testimony of a substantial character to support it. The same rule is not applicable, however, where the trial court has found that the verdict of the jury is against the preponderance of the evidence and has sustained the motion for a new trial, as in the case at bar.

The case of Wilhelm v. Collison, 133 Ark. 166, 202 S.W. 28, involved an appeal by plaintiff from an order granting a motion for a new trial filed by defendant, and the court said: "We are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a new trial pursuant to the prayer of a motion therefor, which assigned as a ground therefor that the verdict of the jury was contrary to the preponderance of the evidence. We have many times said that the trial court should grant a motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 132 Ark. 45, 200 S.W. 136; Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that 'this court will not reverse a decision of the trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict which is sustained by the clear preponderance of the evidence.' McIlroy v. Arkansas Valley Trust Co., 100 Ark. 599, 141 S.W. 197."

In McDonnell v. St. Louis S.W. Ry. Co., 98 Ark. 334, 135 S.W. 925, this court said: "It is reversible error for the trial court to direct a verdict for one party where there is any substantial evidence to warrant a verdict for the other party. The trial court can not take from the jury its prerogative to determine disputed questions of fact. St. Louis, I. M. & S. Ry. Co. v. Petty, 63 Ark. 94, 37 S.W. 300; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 556, 95 S.W. 446; State v. Caldwell, 70 Ark. 74, 66 S.W. 150; Hutchinson v. Gorman, 71 Ark. 305, 73 S.W. 793; LaFayette v. Merchants' Bank, 73 Ark. 561, 84 S.W. 700, 68 L. R. A. 321, 108 Am. St. Rep. 71; Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 445, 78 S.W. 220; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337, 121 S.W. 286.

"But that is a different question from the one under consideration. It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it...