Tilley v. Sparrow
| Decision Date | 15 January 2014 |
| Docket Number | No. CV–13–470.,CV–13–470. |
| Citation | 2014 Ark. App. 23,431 S.W.3d 392 |
| Parties | David R. TILLEY, Appellant v. Debbie SPARROW, Appelllee. |
| Court | Arkansas Court of Appeals |
OPINION TEXT STARTS HERE
Smith, Williams & Meeks L.L.P., by: Richard A. Smith, for appellant.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Peel Law Firm, P.A., Russellville, by: Richard L. Peel, for appellee.
The appellant, David R. Tilley, appeals from an order granting a motion for a new trial in favor of appellee, Debbie Sparrow, following a jury verdict for appellant. He argues that the trial court abused its discretion in granting the motion. We affirm.
This case arose out of a vehicular accident that took place on April 8, 2005, at an intersection controlled by traffic lights in Russellville, Arkansas. The intersection was of two multi-lane streets, Parkway and El Paso. Parkway is a four-lane street without turning bays. Immediately before the accident occurred, appellant was stopped in the eastbound left lane of Parkway, waiting to turn left (north) onto El Paso. He was directly opposite a truck stopped in the westbound left lane of Parkway that was likewise attempting to turn left (south) onto El Paso. When the light turned green, appellant waited until several cars in the outside westbound lane passed the truck opposite him and cleared the intersection. He then turned left, heard something strike the rear of his car, and saw appellee's motorcycle on the ground in the center of the intersection. Appellant testified that he “looked as best he could” before turning but never saw appellee's motorcycle until after the collision. At the time of the accident, appellant was a seventy-year-old retired high school social studies teacher, coach, and driver's education instructor.
Appellee, at the time of the accident, was in her late 30s and was employed as a nuclear plant safety inspector. She had completed a motorcycle-safety course and was an experienced motorcyclist. The only witness to the accident other than the parties testified that appellee was riding a Harley–Davidson motorcycle two or three car lengths ahead of him in the westbound lanes of Parkway immediately before the collision. Because a truck in front of appellee was signaling a left-hand turn at the intersection, appellee changed from the inside lane to the outside lane. The witness testified that appellee was traveling within the speed limit at between twenty-five and thirty miles per hour; that she signaled and executed the lane change smoothly, under control, and without accelerating or decelerating; and that she completed her lane change in front of a body shop located two lots away from the intersection. Morgan Barrett, a civil engineer who owned a surveying company in Russellville, testified that he inspected the intersection and that the body shop was approximately 220 feet from the point of impact. Officer Lee Goemmer of the Russellville Police Department, who responded to the accident scene, testified that a person turning left is required to yield right-of-way to oncoming traffic at that intersection; that he measured a thirty-four foot skid mark made by appellee's motorcycle to the point of impact; and that there were no skid marks made by appellant's vehicle. Finally, Officer Goemmer testified that appellant stated at the scene that he did not see appellee's motorcycle until after the collision.
After a jury returned a verdict for appellant on this evidence, appellee moved for a new trial on the grounds that the jury's verdict was clearly contrary to the preponderance of the evidence. The trial court granted the motion, and this appeal followed.
The law affecting the granting of a new trial and appellate review of that decision is settled. The Arkansas Rules of Civil Procedure permit a circuit judge to order a new trial if the jury's verdict is clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). The test we apply on review of the grant of the motion is whether the trial court abused its discretion. Razorback Cab v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). We will not reverse the grant of a new trial unless the trial court has clearly and manifestly abused its discretion by acting improvidently or thoughtlessly without due consideration. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). 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. Id.
Appellant cites Arkansas Model Instructions–Civil 603 (2012) for the proposition that the mere fact that an accident occurs is not, of itself, evidence of negligence or fault on the part of any person. He argues that the jury could have found that he exercised proper care in making his left turn and that appellee swerved suddenly from a position of concealment behind the westbound, left-turning truck into the outside lane, making it impossible for him to see her in time to avoid the collision. We cannot, on this record, say that the trial court manifestly abused its discretion by granting a new trial.
In finding that a new trial was properly granted in Richardson v. Flanery, 316 Ark. 310, 313, 871 S.W.2d 589, 590–91 (1994), the court said:
The only evidence tending to disprove the allegations of negligence against Mrs. Richardson is her own testimony regarding the cause of the accident. However, it is unrefuted that the Flanerys had the right-of-way when the accident occurred. Even Mrs. Richardson offered no explanation for how the accident occurred, other than to claim that the Flanerys struck her, rather than vice versa:
In the present case, it is likewise unrefuted that appellee had the right of way, and the only defense asserted was that appellant did not see appellee before the collision. Furthermore, although appellant suggests that appellee may have swerved from behind the turning truck at the last moment, this is pure speculation and is contrary to the detailed testimony of the eyewitness and the physical evidence of thirty-four feet of motorcycle skid marks all in the outside lane of traffic. We hold that the trial court did not abuse its discretion in granting appellee's motion for new trial, and we affirm.1
Affirmed. GLADWIN, C.J., and WALMSLEY, WYNNE, and GRUBER, JJ., agree.
The majority has concluded that there was no abuse of discretion in granting Sparrow's motion for a new trial. This conclusion is based on its finding that it was “unrefuted that appellee had the right of way, and the only defense asserted was that appellant did not see appellee before the collision.” I disagree with the majority's conclusion and would hold that the circuit court abused its discretion by substituting its own view of the evidence for that of the jury. Because I would uphold the unanimous twelve-person jury verdict that was rendered in Tilley's favor, I respectfully dissent.
Some additional factual detail helps show why I believe the circuit court and the majority have erred. As the majority explained, Officer Lee Goemmer testified that Tilley's left-turning vehicle had to yield the right of way at the intersection where the accident occurred. But the officer also said that he was familiar with the intersection, that it was difficult to see oncoming traffic, and that to make a left turn as Tilley had done, a person must Officer Goemmer confirmed on the witness stand that he did not issue a citation to Tilley or Sparrow.
Nolan Edwards, who saw the accident, testified that he observed Sparrow change lanes, from the inside lane to the outside lane, in front of him and then proceed through the intersection, where she hit Tilley's vehicle. He told the jury that the intersection was a “rotten” one and that he didn't see anything until Sparrow locked up her brakes. According to Edwards, neither Tilley nor Sparrow appeared to be speeding or driving abnormally. On cross-examination, Edwards agreed that the intersection was a “blind hole” and that someone waiting to turn left has to “take an extra effort.”
Sparrow testified that she was driving her motorcycle normally, not speeding, and had just moved from the inside lane to the outside lane because the truck in front of her was turning left. She said that she knew she was going to hit Tilley because “he was over right coming directly at me as I'm going straight through my lane with a green light.” On cross-examination, she agreed that she was familiar with the intersection and that it was a “fair assumption” that Tilley could not see her.
For Tilley's part, he testified that he waited while six or eight cars passed through the intersection after the light had turned green; then he looked again down the street and saw no one in the outside lane. He, too, stated that this was a “bad intersection” and that “you probably don't see less than half the block.” And speaking from his experience as a driver-education instructor, Tilley agreed that he had looked as best he could before he turned left and stated, He confirmed that he ...
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