ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION  

DIVISION I

CA03-45

October 22, 2003

JAMES BRIDGES AN APPEAL FROM MISSISSIPPI COUNTY

APPELLANT CIRCUIT COURT

[NO. CV2000-97(B)]

v.

HONORABLE VICTOR HILL,

TIMOTHY CATER CIRCUIT JUDGE

APPELLEE

AFFIRMED

John Mauzy Pittman, Judge

In this automobile accident case, the jury rendered a verdict in favor of the defendant-appellant, James Bridges. The plaintiff-appellee, Tim Cater, filed a motion for a new trial on the ground that the jury's verdict was clearly contrary to the preponderance of the evidence. The trial judge granted the motion. On appeal, appellant contends that the trial court abused its discretion in granting the new trial. We disagree and affirm.

The accident occurred at the intersection of Highways 18 and 119 in Mississippi County. Highway 18 is a two-lane highway that runs in an east and west direction. Highway 119 runs north off of Highway 18. Approximately one-half mile east of the highways' intersection is a bridge on Highway 18. On the afternoon of March 20, 1997, appellee Tim Cater was riding his motorcycle in a westerly direction on Highway 18. According to him, he passed several cars before he reached the bridge. As he approached the Highway 119 intersection, he saw a pickup truck in the east-bound lane of Highway 18 that was stopped and waiting to turn north onto Highway 119. The truck was being driven by appellant James Bridges. As appellee approached the intersection, appellant turned in front of him, and appellee's motorcycle struck the right front fender of appellant's truck. Appellee was thrown from the motorcycle and sustained a broken leg and other injuries; he was transported to the hospital where he underwent surgery and stayed for eight days. Appellant stated that he never saw the motorcycle.

Appellee sued appellant in March of 2000, claiming that appellant's negligence had caused the accident. There were two key witnesses at the trial other than appellant and appellee. The first was Kenny Jones, who witnessed the accident. Jones testified that, like appellee, he was driving west on Highway 18. At some point, appellee passed Jones, although Jones could not recall if that occurred before or after the vehicles reached the bridge. He said that appellee's motorcycle came around him at fifty to fifty-five miles per hour and had fully returned to its lane for "a pretty good piece" before the accident occurred. He also said that he saw appellant's truck ahead with its blinker on and that the truck simply turned, leaving appellee no way to avoid the collision.

On cross-examination, appellant questioned Jones about a taped statement that Jones had given to an insurance investigator approximately four months after the accident. In the statement, Jones said that appellee was "probably" going sixty miles per hour when he passed him. Further, when the investigator asked Jones how fast "just guessing" he thought appellee might have been going, Jones answered that "he was going sixty to sixty-five because he had to go around me." Jones also made statements to the investigator concerning the point at which appellee returned to the right-hand lane after passing Jones:

Answer: Yes, sir.

....

Question: And just as [appellee] got back into the lane, it was probably 70 feet or so before the impact.

On redirect, Jones testified that he had not meant, by the above statement, to say that appellee returned to his lane just before impact; he had meant to say that appellee was "probably 70 feet from [appellant's] vehicle when he realized [appellant] was turning." He also said the following:

The other key witness was State Trooper Freddie Ware, who investigated the accident. Ware testified that the day of the accident was sunny and clear. He also measured 127 feet of skid marks left by appellee's motorcycle in the right-hand lane. He testified that he could not find anything that appellee had done wrong but felt that appellant had failed to yield. On cross-examination, appellant asked Trooper Ware about a diagram he prepared of the accident. The diagram showed appellee's skid marks as being fully contained in the right-hand lane but beginning close to the center line and veering to the right. Appellant tried to make the point thatthe skid marks moving from center to right could indicate that appellee had just completed a pass:

Following the trial, the jury returned a nine-to-three verdict in favor of appellant. Appellee filed a timely motion for a new trial on the ground that the jury's verdict was clearly contrary to the preponderance of the evidence, arguing that it was undisputed that appellant had failed to keep a proper lookout and had turned in front of appellee. On July 24, 2002, the trial judge granted appellee's motion, stating that "the Court is unable to find any evidence that would support the jury's determination that the [appellant] was not responsible for this accident." Appellant appeals from that ruling.

Our research reveals that a grant of a new trial has been affirmed in several automobile accident cases in which the jury has rendered a defendant's verdict. See Diamond State Towing Co. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996); Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996); Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995); Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994); Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990); Stephens v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987). Additionally, this court recently decided a case in which the trial court refused to grant a new trial, and we reversed, holding that a new trial should have been granted. Dovers v. Stephenson Oil Co., ___ Ark. App. ___, 98 S.W.3d 462 (Feb. 26, 2003).1 In reviewing a trial court's grant of a motion for a new trial, we determine whether the trial court abused its discretion. Randles v. Cole, 80 Ark. App. 334, 96 S.W.3d 768 (2003). However, the trial court has limited discretion and may not substitute its view of the evidence for the jury's except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). A showing of an abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Randles v. Cole, supra. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised without due consideration. Id.

We do not believe that the trial court abused its discretion in awarding appellee a new trial in this case. First, there is no proof that appellee himself was negligent. While Kenneth Jones may have told the insurance investigator that appellee could possibly have been traveling sixty to sixty-five miles per hour when he passed Jones, there is no evidence beyond speculation that appellee was traveling at those speeds at the time of the accident, nor is there any evidence beyond speculation that appellee's speed contributed to the accident. Moreover, although Jones's statement to the investigator may be read to say that appellee re-entered his lane only seventy feet before impact, such an interpretation is at odds with the physical evidence. Trooper Ware measured 127 feet of skid marks, all in the proper lane. That being the case, there is no evidence that appellee was passing in a no-passing zone.2

There being no evidence that appellee was negligent, and there being undisputed evidence that appellee suffered at least some damage in the form of medical bills, lost wages, and pain and suffering (although the extent of his damages was disputed), the jury's verdict in favor of appellant could only have been based on a finding that appellant was not negligent. We cannot say that the trial court abused its discretion in determining that such a finding was clearly contrary to the preponderance of the evidence. There is no dispute that appellant turned directly in front of appellee's oncoming motorcycle. Appellant offered no explanation for doing so, onlythat he did not see the motorcycle.3 Appellant directs us to Kenneth Jones's statement that appellee may have just re-entered his lane prior to the collision. However, the physical evidence shows that appellee re-entered his lane at least 127 feet from the intersection. Thus, the evidence provides no explanation for appellant's failure to see a motorcycle that was in front of him in the opposite lane on a clear day.

Our affirmance is supported by the supreme court's holding in Richardson v. Flanery, supra, and our recent holding in Dovers v. Stephenson Oil Co., supra. In Richardson, the plaintiffs were driving south on Highway 167 when the defendant entered the highway in a feeder lane without yielding, and a collision occurred. Like the defendant in this case, the defendant there offered no explanation for the accident or her failure to yield, other than to claim that she did not see the other vehicle. After the jury returned a defendant's verdict, the trial court's grant of a new trial was affirmed on appeal.

In Dovers, the vehicle in front of the plaintiff's car stopped on Highway 67 and plaintiff was rear-ended by the defendant. The defendant said he could do nothing to avoid the accident, and the jury found for the defendant. Plaintiff sought a new trial, which was denied by the trial court. On appeal, we said that a new trial should have been granted because "fair-minded people could only have concluded that [defendant] was either following too closely or being inattentive, and that his negligence contributed in some measure to his collision with [plaintiff's] car." Slip op. at 7, 98 S.W.3d at 467.

By the same token, this case may be distinguished from those in which the supreme court reversed the award of a new trial in an automobile accident case. See Razorback Cab of Ft. Smith v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993); Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989); and Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988). In Martin, the plaintiff, a cyclist, wasstruck by defendant, a cab driver, on a dark winter morning. The jury rendered a defendant's verdict, but the trial judge granted a new trial. The supreme court reversed on the basis that there was witness testimony that the plaintiff was wearing dark clothing and that his bicycle was not visible to the cab driver. In Schrader, the defendant's brakes went out when he was driving down a hill; he ran a stop sign and struck the plaintiff. After a jury verdict in favor of the defendant, the trial court granted a new trial. The supreme court reversed because an expert had testified that the defendant's brakes could have failed without warning. In Kobera, an accident occurred on an icy roadway. A new trial in favor of the plaintiff was reversed because there was evidence, in the form of the plaintiff's own testimony, that he was driving too fast on the icy road. In each of these cases, there was clear, tangible, non-speculative evidence upon which the jury could have decided that either natural conditions or the negligence of the plaintiff caused or contributed to the accident. In the case at bar, there is no such evidence. Thus, there was no abuse of discretion in granting a new trial.

Appellant makes a brief argument that the trial judge should have instructed the jury on comparative fault. However, this issue is rendered moot by our holding that a new trial was properly granted. As for whether the comparative fault instruction should be given at the new trial, that will depend on the evidence adduced therein.

Affirmed.

Hart and Griffen, JJ., agree.

1 Review granted May 1, 2003.

2 Arkansas law prohibits overtaking on the left within 100 feet of an approaching vehicle or intersection. Ark. Code Ann. sections 27-51-307(a)(2) and (b)(2) (Repl. 1994).

3 There was evidence that appellant, who was eighty-two at the time of trial, had cataracts at the time of the accident, although he opined that his vision was good for his age at that time.