Tidwell v. Ray, W-C-21-61.

• Decision Date: 18 September 1962
• Docket Number: No. W-C-21-61.,W-C-21-61.
• Citation: 208 F. Supp. 952
• Parties: Carl TIDWELL, Administrator of the Estate of Brenda Sue Tidwell, Deceased, Plaintiff, v. Thermon L. RAY, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

208 F. Supp. 952

Carl TIDWELL, Administrator of the Estate of Brenda Sue Tidwell, Deceased, Plaintiff, v. Thermon L. RAY, Defendant.

No. W-C-21-61.

United States District Court N. D. Mississippi, W. D.

September 18, 1962.

W. L. McDonough, William G. Collins, Leslie Darden, Lester F. Sumners, New Albany, Miss., for plaintiff.

Hugh N. Clayton, New Albany, Miss., for defendant.

CLAYTON, District Judge.

This diversity tort action seeking damages for the death of a seven year old girl was tried to a jury. At the close of all the evidence plaintiff moved for a directed verdict upon the ground that, as a matter of law, defendant's evidence established negligence on his part which contributed to the happening of the accident in which the child was killed and that since the child could not be charged with contributory negligence the verdict must be for plaintiff. This motion was overruled and upon submission to the jury, a verdict for the defendant was returned, upon which judgment for the defendant was entered.

Motion to set aside the verdict and judgment and to enter judgment in accordance with plaintiff's aforementioned motion for directed verdict and, alternatively, for a new trial, on the ground that the verdict was against the overwhelming weight of the evidence and contrary to law, was timely filed and is now for disposition on briefs.

No exceptions were taken by plaintiff to the court's instructions to the jury and no complaint is made with respect to any ruling made upon receipt or rejection of evidence or to any other incident or occurrence during the trial. Defendant correctly concedes that a seven year old child is not chargeable with contributory negligence. Hines v. Moore, 124 Miss. 500, 87 So. 1; Morris v. Boleware, 228 Miss. 139, 87 So.2d 246. Hence, only the fact question of actionable negligence or not on the part of defendant is involved.

This court has power to sustain the motion for judgment (the first ground) for one reason only — the absence of any substantial evidence to support the verdict. Danko v. Lewy (5 Cir.), 149 F.2d 66; Pratt v. Louisiana & A. Ry. Co. (5 Cir.), 135 F.2d 692. Or, to say it differently, this motion for judgment should be sustained only if plaintiff's motion for directed verdict should have been sustained. Southeastern Greyhound Lines v. McCafferty (6 Cir.), 169 F.2d 1; Hawkins v. Sims (4 Cir.), 137 F.2d 66, 67; Aetna Casualty & Surety Co. v. Yeatts (4 Cir.), 122 F.2d 350. And, the standard to be applied here is the same as the standard for directing a verdict. Sparrow v. Yellow Cab Co. (7 Cir.), 273 F.2d 1; Standard Accident Ins. Co. of Detroit, Michigan v. Winget, (9 Cir.), 197 F.2d 97, 34 A. L.R.2d 250.

A question for the jury is presented when fair minded men may differ as to the conclusions of fact to be drawn from the evidence. Swift & Co. v. Morgan & Sturdivant (5 Cir.), 214 F.2d 115, 49 A.L.R.2d 924. This rule has been summarized as follows:

"While the power to direct a verdict¹ should, indeed must, be exercised where the state of the evidence demands it, it should be exercised only when the evidence and the inferences from the evidence are such that reasonable men could reach only one rational conclusion." (Citing cases.) (Emphasis added.) Seaboard Properties, Inc. v. Bunchman (5 Cir.), 278 F.2d 679, 681. See also: Baker v. Nason (5 Cir.) 236 F.2d 483 and Atlantic Greyhound Corp. v. Crowder (5 Cir.), 177 F.2d 633.

The conclusion of fact here drawn by the jury from the evidence was that the defendant had acted as would have a reasonably prudent man in the circumstances, and that he was not guilty of any actionable negligence.

And, with respect to directing a verdict for plaintiff, the rule of law applicable in federal district courts has been stated thus:

"In proper circumstances, a federal judge may direct a verdict in favor of the party having the burden of proof. The test, however, in granting a directed verdict for the party with the burden of proof is different from that when his opponent makes the motion. It requires the judge to test the body of evidence, not for its insufficiency to support a finding but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding. The ultimate conclusion that there is no genuine issue of fact depends not on a failure to prove at least enough so that the controverted fact can be inferred, but rather depends on making impossible any other equally strong inferences once the fact in issue is at least inferable." (Emphasis added.) Barron & Holtzoff, Federal Practice and Procedure, Vol. 2B, § 1075, p. 396.

Plaintiff says in his brief, "since the jury evidently accepted the defendant's version of the facts, the sole factual basis of this motion is taken from defendant's own testimony, or facts not in dispute". With this limited aspect, the substance of the pertinent facts will be stated.

Defendant, driving his own automobile, which was purchased new about sixteen months before and which was in good mechanical condition, first saw a standing automobile facing toward him on the shoulder of the highway about one-quarter of a mile away, when he came out of a curve traveling about 55 or 60 miles an hour. As he continued toward this parked automobile he saw "activity" therein and when he was about one-tenth of a mile away he "assumed" that someone was alighting therefrom and then lifted his foot from the accelerator which allowed the vehicle to slow down. There was a mail box near the standing automobile but there was no house on that side of the road in the immediate vicinity. There was a house off the highway on the opposite side. When defendant saw someone move toward the rear of the parked vehicle, he immediately applied his brakes. When he was within one hundred feet or less of the standing automobile, he saw, for the first time, the seven year old child when she started out into the highway from behind the parked vehicle. Immediately he sounded the horn and swerved his automobile to the right, continuing to apply the brakes with greater force, but not fully since he felt to fully depress them would cause his automobile to overturn. The child ran into the left side of defendant's automobile when it was moving at from 20 to 25 miles per hour, at about the front edge of the left front door and was killed. Defendant's automobile was entirely off the pavement to his right when the impact occurred and came to rest on that side, but off the highway in a field.

It cannot be said that these facts would not permit a finding different from that of negligence and liability on the part of defendant. Hence, the motion for judgment is not well taken.

As aforementioned, plaintiff presents a motion for new trial on the ground that the verdict was against the overwhelming weight of the evidence, and contrary to law, but, as noted, the factual argument is limited to the evidence which would properly bear only on the motion for judgment. In this posture of plaintiff's alternative motion this court, perhaps would be justified in ignoring, or summarily disposing of the motion for a new trial adversely to plaintiff. However, it will be given full consideration.

In passing upon the motion for judgment this court was bound to...