Bell v. Darwin

Donna BELL v. William G. DARWIN

96-212                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 17, 1997


1.   New trial -- test applied at trial -- test on review when
     motion has been denied. -- When a motion for a new trial is
     made, the test to be applied by the trial court is whether the
     verdict is against the preponderance of the evidence; but
     where the motion is denied, the test on review is whether the
     verdict is supported by substantial evidence, giving the
     verdict the benefit of all reasonable inferences permissible
     under the proof.  

2.   Witnesses -- determination of credibility -- province of jury
     to make determination. -- It is the sole province of the jury
     to determine not merely the credibility of the witnesses but
     also the weight and value of their testimony.

3.   New trial -- substantial evidence existed to place entire
     blame for accident on appellant's husband -- trial court's
     denial of motion for new trial affirmed. -- There was
     substantial evidence from which the jury could have found, and
     obviously did find, that appellant's husband was entirely to
     blame for the accident; the evidence showed that he was late
     for work, was inattentive, failed to see appellee's car, and
     ran the traffic light, striking the rear panel of appellee's
     car; accordingly, the trial court's ruling denying appellant's
     motion for a new trial was affirmed.  


     Appeal from Saline Circuit Court; John W. Cole, Judge;
affirmed.
     Ellis Law Firm, by:  George D. Ellis, for appellant.
     Anderson & Kilpatrick, by:  Michael P. Anderson, for appellee.

     Tom Glaze, Justice.
     On December 16, 1993, Ronald Bell, with his wife Donna as a
passenger, was driving to work in his 1986 Honda east on West
Markham Street in Little Rock, when he approached a traffic light
where the street intersects St. Vincent Circle on the south side. 
Appellee William G. Darwin was operating his Chevrolet heading west
and was in the left turn lane under the light awaiting clearance of
the eastbound traffic, so he could turn onto St. Vincent Circle. 
Darwin was into Circle Drive when Bell's car struck the right rear
panel of Darwin's car.  Donna and Ronald Bell were subsequently
transported to the hospital by ambulance where it was determined
Donna had sustained a fracture to her right lower leg.
     The Bells filed suit alleging negligence on Darwin's part and
seeking damages for their injuries.  At trial, a jury returned
general verdicts in Darwin's favor.  Donna moved for a new trial,
claiming the jury verdict was clearly contrary to the evidence, but
the trial court denied her motion.  Donna, alone, brings this
appeal, urging that the trial court erroneously denied her motion.
     Donna contends the jury verdict was outrageous because she was
an innocent party who clearly had no fault in causing the accident. 
She points out that the trial court gave the jury an instruction on
comparative negligence, covering the two drivers, but the
instruction did not include Donna since she bore no negligence.  In
sum, Donna argues that the only circumstance under which she could
not have prevailed in her suit against Darwin is for the jury to
have found her husband 100% at fault.  She suggests such a finding
was impossible.     
     In support of her argument she emphasizes the deposition
testimony of Darwin, read at trial, where the following colloquy
took place:
     Q:   Okay.  Now, do you have a feeling or a gut feeling
     or an educated feeling or opinion, or whatever you want
     to call it, as to who was at fault in this automobile
     collision, you or Mr. Bell who was driving?
     A:   I have to believe that both of us were, but that's
     for  the court to . . .
     Q:  Sure.  Okay.  You think that both drivers were at
     fault?
     A:   Yes.
Donna further relies on this court's decisions in Young v.
Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), and Bristow v.
Flurry, 324 Ark. 51, 894 S.W.2d 894 (1995), where this court upheld
the lower courts' granting of new trials, in significant part,
because the defendants had conceded or admitted some negligence. 
Like in Young and Bristow, Donna argues that the trial court had
limited discretion in ruling on her new trial motion, and that the
lower court erred in failing to conclude the evidence was clearly
against the jury's general verdict effectively finding Ronald 100%
at fault.  We must disagree.
     In considering Donna's argument, we agree that, when a motion
for a new trial is made, the test to be applied by the trial court
is whether the verdict is against the preponderance of the
evidence.  Ark. R. Civ. P. 59(a); Gilbert v. Shini, 314 Ark. 486,
863 S.W.2d 314 (1993).  But where the motion is denied, as is the
situation here, the test on review is whether the verdict is
supported by substantial evidence, giving the verdict the benefit
of all reasonable inferences permissible under the proof.  Id.,
Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794 (1996).
     From our review of the record, we hold that, while the Bells
had appropriately introduced Darwin's deposition testimony wherein
he opined sharing fault in the collision, the Bells's own trial
testimony and that of the investigating officer was sufficient to
place the entire blame on Ronald.  For example, Ronald related that
prior to the accident, he had been on I-630 when traffic became
congested, so he took the University Avenue exit, proceeded north
to West Markham Street and turned right, heading east.  He conceded
he was going to be late for work, and never recalled seeing
Darwin's car as it turned left in front of him at the intersection. 
Ronald said that he could not remember if he was in the inside
(left) or outside (right) lane on West Markham, but he recalled
striking the left rear panel of Darwin's vehicle.  He further
testified that, as he approached the St. Vincent Circle's
intersection, he "looked up and saw yellow and looked down and hit
him."  Donna testified that the traffic "light was turning yellow
when Ronald decided he did not have time to stop before he went
through it."  And Officer Pam Davis said that, in investigating the
collision, Ronald's car struck Darwin's car at the south curb line
of West Markham when Darwin's vehicle was already past the turn
into St. Vincent Circle.
     In addition, Darwin testified in his case-in-chief, but never
conceded the fault mentioned in his earlier deposition.  Instead,
Darwin testified that immediately prior to the collision, he had
stopped his car in the left turn lane awaiting the eastbound
traffic to clear, and when the light turned yellow, he moved under
the light, so he could make the turn onto St. Vincent Circle.  He
said that he only turned when he saw an eastbound car stop in the
outside lane; he then crossed the two eastbound lanes and was
driving on St. Vincent Circle when the collision occurred.
     Obviously, while Darwin had offered sometime prior to trial to
share some fault for the accident, conflicting versions of what
happened and who was to blame were given at trial.  As we have held
in prior decisions, it is the sole province of the jury to
determine not merely the credibility of the witnesses, but the
weight and value of their testimony.  Gilbert at 487.  While Donna
strongly argues evidence that, if accepted by the jury, could have
placed fault on Darwin, there is, we submit, substantial evidence
from which the jury could have found (and obviously did find) that
Ronald was late for work, was inattentive, failed to see Darwin's
car, and ran the traffic light, striking the rear panel of Darwin's
car after his  car had already driven past West Markham's southside
curb line and into St. Vincent Circle.  Accordingly, we affirm the
trial court's ruling, denying Donna's motion for new trial.