Jerry Haynes v. Bee-Line Trucking ( 1996 )

  •                                        ___________
                                           No. 95-1591
    Jerry Haynes,                              *
                 Appellee,                     *
                                               *   Appeal from the United States
            v.                                 *   District Court for the
                                               *   Eastern District of Arkansas.
    Bee-Line Trucking Company;                 *
    Richard McCormick,                         *
                 Appellants.                   *
                              Submitted:   November 16, 1995
                                  Filed:   April 9, 1996
    Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
          FAGG, Circuit Judge.
    HENLEY, Senior Circuit Judge.
            This is a diversity of citizenship action arising from a traffic
    accident involving two tractor trailer trucks on Interstate 55 in eastern
    Arkansas.    Plaintiff Jerry Haynes (of Arkansas) was driving a truck for
    Ozark    Truck    Lines    (of   Tennessee).   Defendant   Richard   McCormick   (of
    Missouri) was driving a truck for co-defendant Bee-Line Trucking (also of
    Missouri).       Haynes' truck (going about 66 or 67 miles per hour) came up
    behind and struck the truck driven by McCormick (which was moving at only
    20 to 30 miles per hour).
            Haynes was injured in the accident and sued both driver McCormick and
    Bee-Line Trucking for damages on grounds that the McCormick/Bee-Line truck
    was being negligently operated at below the posted minimum speed limit.
    The suit was originally filed by
    Haynes in Arkansas state court.        Because there was complete diversity of
    citizenship between the plaintiff and defendants, the action was removed
    by the defendants to the United States District Court for the Eastern
    District of Arkansas.       The case was tried to a federal jury sitting in
    Jonesboro, Arkansas, which returned a verdict in favor of plaintiff Haynes
    in the amount of $250,000.
         Both at the end of plaintiff's case and at the close of the trial,
    defendants moved for judgment as a matter of law.             The defendants also
    timely objected to certain jury instructions.        Finally, after the verdict
    the defendants moved for a new trial or remittitur.           All of these motions
    were overruled by the district court.
         Defendants McCormick and Bee-Line filed a timely notice of appeal
    from the judgment of the district court under 28 U.S.C. § 1291.          Defendants
    raise three principal assertions of error: (1) the district court erred in
    denying defendants' motions for judgment as a matter of law because the
    plaintiff    failed   to   prove   defendants   proximately    caused   plaintiff's
    injuries; (2) the district court erred in instructing the jury on Arkansas
    law regarding the applicable standards of care; and (3) the district court
    erred in denying defendants' motion for new trial or remittitur because the
    evidence did not support the amount of the jury's verdict.
         Finding no reversible error in any of the rulings complained of, we
    affirm the judgment of the district court.
         The traffic accident in question occurred at approximately 6:15 p.m.
    on August 28, 1990, near Osceola, Arkansas.         Defendant
         The Honorable Stephen M. Reasoner, Chief Judge, United States
    District Court for the Eastern District of Arkansas.
    McCormick testified that he was driving north on Interstate 55
    when he began experiencing a problem with his truck.               The truck      lost power
    and would not go faster than 20-30 miles per hour.                  McCormick testified
    that he believed he was either running out of fuel or having a fuel filter
            McCormick said that he had been having the fuel problem for about 35
    miles, but had decided to go on.           He had decided not to pull off onto the
    shoulder, not to use his CB radio to call for help, not to stop at a rest
    stop, and not to exit at either of two highway exits he passed.                   McCormick
    testified that he was driving in the right hand lane with his emergency
    flashers on and trying to make it to the Blytheville, Arkansas, highway
            Plaintiff Haynes testified that he was also driving in the right hand
    lane travelling north on Interstate 55 behind another large tractor-trailer
    truck.    The other truck suddenly switched from the right to the left lane
    and Haynes found himself coming up very quickly behind the slow-moving Bee-
    Line truck driven by McCormick.         Haynes said that he tried to move to the
    left lane to avoid running into McCormick's truck but that he could not do
    so because there were two automobiles in the left lane next to him.                  Haynes
    also braked to try to stop before he hit the McCormick truck, but the
    distance was too short to bring his truck to a stop.               The Haynes truck hit
    the McCormick/Bee-Line truck from behind and Haynes was injured.
            Haynes'   suit    alleged   that    he    was    injured   as   a   result   of   the
    negligence of McCormick in operating his truck at a speed which was below
    the posted minimum speed and too slow for conditions.               Haynes alleged that
    Bee-Line was also liable for his injuries because McCormick's negligent
    actions    occurred      within   the   scope     of    his   employment    for   Bee-Line.
    Defendants Bee-Line and McCormick defended on the theory that Haynes'
    injuries were proximately caused by his own negligence and not the
    negligence of McCormick.
    Motions for Judgment as a Matter of Law
            Defendants Bee-Line and McCormick first contend that they were
    entitled to judgment as a matter of law under Federal Rule of Civil
    Procedure 50.    Rule 50 provides in relevant part:
            (a) Judgment as a Matter of Law.
                 (1) If during a trial by jury a party has been fully
                 heard on an issue and there is no legally sufficient
                 evidentiary basis for a reasonable jury to find for that
                 party on that issue, the court may determine the issue
                 against that party and may grant a motion for judgment as
                 a matter of law . . . .
            We review de novo the denial of a motion for judgment as a matter of
    law, applying the same standard as the district court.          Fox v. T-H
    Continental Limited Partnership, No. 95-2660 (8th Cir. 1996) (slip op. at
    5-6).    Defendants concede that under the applicable standard they have a
    heavy burden to bear:
                 In ruling on a motion for [judgment as a matter of law],
                 the district court must (1) consider the evidence in the
                 light most favorable to the prevailing party, (2) assume
                 that all conflicts in the evidence were resolved in favor
                 of the prevailing party, (3) assume as proved all facts
                 that the prevailing party's evidence tended to prove, and
                 (4) give the prevailing party the benefit of all
                 favorable inferences that may reasonably be drawn from
                 the facts proved. That done, the court must then deny
                 the motion if reasonable persons could differ as to the
                 conclusions to be drawn from the evidence.
    TEC Floor Corp. v. Wal-Mart Stores, 
    4 F.3d 599
    , 601 (8th Cir.1993) (quoting
    Western Am., Inc. v. Aetna Casualty & Surety Co., 
    915 F.2d 1181
    , 1183 (8th
    Cir. 1990)).
            Despite this heavy burden, Bee-Line and McCormick contend that they
    were entitled to judgment as a matter of law because there was no
    substantial evidence that the accident and resulting injuries occurred from
    McCormick driving below the minimum speed limit.   They say that it is just
    as likely that the accident would have
    occurred if McCormick was driving 45 miles per hour which is the authorized
    minimum speed.    Defendants argue that the only way the jury could have
    found for the plaintiff on the proximate cause issue was by speculation and
    conjecture, because there was neither direct nor circumstantial evidence
    to support the verdict.
         We agree with the district court that there was sufficient evidence
    of proximate cause to submit the issue to the jury and therefore defendants
    were not entitled to judgment as a matter of law.                           See TEC
    Floor Corp., 4 F.3d at 601-602.       See also John Cheeseman Trucking, Inc. v.
    853 S.W.2d 278
    , 280-81 (Ark. 1993).          Both Haynes and McCormick
    testified about the accident as did the state trooper who investigated the
    accident at the scene.     There was plenty of evidence, both direct and
    circumstantial, that the reason for the accident was that McCormick stayed
    on the road even though he could only go about 20-30          miles per hour.
         Accordingly, we hold that the district court did not err in failing
    to grant the defendants' motions for judgment as a matter of law.
    Jury Instructions
         Next   the   defendants   make    several   challenges   claiming   that   the
    district court's instructions to the jury were erroneous.
         (a)    Sudden Emergency Instruction
         In instructing the jury, the district court gave the so-called sudden
    emergency instruction which relaxes the standard of care that a person
    (such as the plaintiff Haynes) is charged with when he finds himself in a
    sudden emergency situation:
                A person who is suddenly and unexpectedly confronted with
                danger to himself or others, not caused by his own
                negligence, is not required to use the same judgment that
                is required of him in calmer and more deliberate moments.
                He is required to use only the care a reasonably careful
                person would use in the same situation. However, this
                rule applies in evaluating the actions of Mr. Haynes only
                if you find that the emergency situation was not
                caused by any negligence on Mr. Haynes' part.
    (Jury Instruction No. 14).
         Bee-Line and McCormick contend that under Arkansas law the sudden
    emergency instruction should not have been given, if the emergency arose
    even in part from the negligence of Haynes himself.    They argue that it was
    daylight, the road was dry, straight, and flat, and that therefore it must
    be true that Haynes would not have rear-ended McCormick's truck but for
    some negligence on his own part in failing to start braking in time.
         We disagree.       Upon our review of the record we believe that the
    district court was correct in concluding that the evidence could be taken
    to indicate Haynes had played no part at all in creating the danger, i.e.,
    the McCormick/Bee-Line vehicle travelling very slowly on a busy interstate
    highway.   Therefore,   it was up to the jury to evaluate the reasonableness
    of Haynes' conduct under the relaxed standard of the sudden emergency
    instruction.   This is exactly what Instruction No. 14 said.
           We do not believe that the cases from the Arkansas Supreme Court
    cited by defendants require a different result.       It is true that on the
    surface the Arkansas cases may seem to be in some disarray; however, we
    believe that carefully read the results in the cases can be reconciled
    based upon variations in the facts.
         In Druckenmiller v. Cluff, 
    873 S.W.2d 526
    , 530-32 (Ark. 1994), the
    Arkansas Supreme Court reviewed a number of its decisions on the sudden
    emergency instruction and concluded that the instruction should not be
    given when "an emergency arises wholly or partially from the negligence of
    the person who seeks to invoke the sudden emergency doctrine."     The court
    held on the facts of Druckenmiller that the trial court had properly
    refused to give the instruction because Mrs. Druckenmiller was herself
    partly responsible for the emergency.      She had a clear view of a vehicle
    turning into the intersection in front of her and yet she failed to brake
    in time.
    Similarly, the Arkansas Supreme Court ruled in Frisby v. Agerton Logging,
    Inc., No. 95-816 (Feb. 19, 1996) (slip op. at 6-8), that the sudden
    emergency instruction should not be given where there was evidence that the
    vehicles of both plaintiff and defendant were over the center line of the
    road when the accident occurred.
         On the other hand, the Arkansas Supreme Court has upheld the giving
    of the sudden emergency instruction on facts similar to those of the case
    at hand.   In Thomson v. Littlefield, 
    893 S.W.2d 788
    , 792-93 (Ark. 1995),
    Tritt came upon an accident involving three other cars.   He tried to avoid
    the other vehicles but was unable to stop before hitting them.          The
    plaintiffs argued that the trial court erred in giving the sudden emergency
    instruction on grounds similar to the arguments advanced by McCormick and
    Bee-Line here.   They contended that Tritt must have been at least partially
    negligent in failing to maintain a proper lookout, failing to maintain
    proper control of his vehicle, and failing to stop in time.    The Arkansas
    Supreme Court, however, rejected this contention:
               In the present case, Tritt in no way caused the danger
               with which he was confronted, but instead only became
               aware of the danger caused by another (or others),
               perceived the emergency and acted in accordance with the
               stress caused by the danger. The issue became one of
               fact as to whether Tritt used only the care that a
               reasonably careful person would use in the same
               situation, not whether he was entitled to [the sudden
               emergency instruction]. Tritt clearly was entitled to
               the sudden emergency instruction, since he did not create
               the emergency.
    893 S.W. 2d at 792 (citations omitted).
         Thus, the common rationale of the recent Arkansas cases appears to
    be that the instruction is appropriate where the requesting party played
    no role in creating the sudden emergency danger.   In the present case, the
    sudden danger    -- the very slow-moving vehicle appearing suddenly in the
    roadway -- was not created
    by any action of plaintiff Haynes.             Accordingly, we hold that the district
    court did not err in giving the sudden emergency instruction on the facts
    of this case.
          (b) Instruction on Right to Assume Others will use Ordinary Care
          The district court instructed the jury as follows:
                   Every person using ordinary care has a right to assume,
                   until the contrary is, or reasonably should be apparent,
                   that every other person will use ordinary care and obey
                   the law. To act on that assumption is not negligence.
    (Jury Instruction No. 13).
          Bee-Line and McCormick contend that, although this instruction is
    normally correct in highway accident cases, it was error for the court to
    give that instruction here, because it created an inference or presumption
    that Haynes was exercising ordinary care.             They argue that this instruction
    can only be given in a case where there is no dispute over whether a party
    was   using    ordinary      care.     They     further    say   that   this   instruction
    essentially left the jury no alternative but to assume that Haynes was not
    at fault and that McCormick and Bee-Line therefore must have been at fault.
          We disagree.         As the district court stated, it is just as likely that
    the jury interpreted the instruction's reference to "every person using
    ordinary      care"   to    apply    equally    to   plaintiff    Haynes   and   defendant
    McCormick, i.e., if either was using ordinary care he was entitled to
    assume the other would also use such care.                Moreover, it appears that the
    defendants' argument may prove too much.               If their view were adopted the
    instruction could seldom be given, because in nearly every contested
    accident case the defendants contend that the plaintiff was also partly at
          We believe that the instruction correctly states Arkansas law and
    that the district court did not err in giving the instruction
    on the facts of this case.    See, e.g., Purtle v. Shelton, 
    474 S.W.2d 123
    126 (Ark. 1971); Blythe v. Byrd, 
    472 S.W.2d 717
    , 719 (Ark. 1971).
         (c) Instructions regarding the Violation of Statutes, Ordinances or
         Appellants next contend that the district court erred in giving two
    instructions which allowed the jury to consider that defendants' violation
    of a statute, ordinance, or regulation could be evidence of negligence.
         First, the defendants attack the giving of Instruction No. 18 which
    said that violation of a statute or ordinance (here the statute providing
    a minimum speed limit of 45 and also a statute prohibiting impeding the
    normal flow of traffic) could be evidence of negligence:
                  A violation of one or more of these statutes, although
                  not necessarily negligence, is evidence of negligence to
                  be considered by you along with all the other facts and
                  circumstances in the case.
    (Jury Instruction No. 18).
         Second, the defendants attack the giving of Instruction No. 19 which
    said that the violation of a federal highway regulation prohibiting the
    operation of a vehicle in a manner likely to cause an accident or breakdown
    could be evidence of negligence:
                  A violation of this regulation, although not necessarily
                  negligence, is evidence of negligence to be considered by
                  you along with all the other facts and circumstances in
                  this case.
    (Jury Instruction No. 19).
         Defendants argue that both of these instructions created confusion
    for the jury and suggested that they were to apply
    something other than the ordinary tort law standard of care.
         We disagree.     Both of these instructions are modelled on Arkansas'
    Model Jury Instruction 903, which is a commonly accepted formulation of
    Arkansas law on evidence of negligence.        See, e.g., Russell v. Watkins, 
    678 S.W.2d 762
    , 765 (Ark. 1984).       We see nothing erroneous about giving either
    of these instructions which properly said that the jury could consider
    violations    of   statutes   or   regulations    (if   proved)   as    evidence   of
    Motion for a New Trial or Remittitur Based on the Excessiveness of the
         The jury awarded Haynes $250,000 in compensatory damages.              Bee-Line
    and McCormick contend that Haynes only submitted evidence of a total of
    $26,000 in medical expenses and lost wages.         Thus, they contend that the
    award was nearly ten times greater than the evidence could support.
         We review the denial of a motion for new trial or remittitur only for
    clear abuse of discretion.     Norton v. Caremark, Inc., 
    20 F.3d 330
    , 334, 340
    (8th Cir. 1994).     The defendants have not satisfied that standard here.
    As Haynes notes, there was plenty of testimony about his continued pain and
    suffering and his loss of use of his leg from the accident.            Thus, the jury
    was entitled to include in its award Haynes' future pain and suffering and
    possible loss of future income in addition to the medical expenses and lost
    wages which had already occurred.
         We believe that the district court properly left the amount of
    damages to the discretion of the jury based on the evidence and that the
    district court did not err in refusing a new trial or remittitur.
         For the reasons stated above, the judgment of the district court is
    in all respects affirmed.
    A true copy.