Ana Gloria Moreno v. TLSL, Inc. , 2016 Miss. LEXIS 124 ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-00044-SCT
ANA GLORIA MORENO
v.
TLSL, INC. AND RANDALL WALKER
DATE OF JUDGMENT: 12/04/2014
TRIAL JUDGE: HON. PAUL S. FUNDERBURK
TRIAL COURT ATTORNEYS: CHRISTOPHER E. SANSPREE
KENNETH INGRAM
CHRIS H. DEATON
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHRISTOPHER EUGENE SANSPREE
ATTORNEY FOR APPELLEES: CHRIS H. DEATON
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 03/17/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BEAM, JUSTICE, FOR THE COURT:
¶1. This wrongful-death action was brought against TLSL, Inc. (“TLSL”) and Randall
Walker for the death of Arnoldo Moreno (“Arnoldo”). On November 7, 2011, at
approximately 5:00 a.m., Arnoldo, Juan Estrada, and Jose Garcia-Guillan were killed in a
motor-vehicle collision when Arnoldo’s pickup truck collided with an eighteen-wheeler
tractor-trailer, owned by TLSL and driven by Walker. Ana Moreno (“Moreno”), Arnoldo’s
widow, filed a wrongful-death action in the Circuit Court of Alcorn County. A jury trial was
held in December 2014. After Moreno rested, TLSL and Walker moved for a directed
verdict, which the trial court granted. After review, we affirm the trial court’s decision.
FACTS
¶2. On November 7, 2011, Arnoldo, Estrada, Garcia-Guillan and Ricardo Valdez were
traveling on U.S. Highway 72 west toward Memphis, Tennessee. Walker, a truck driver for
TLSL, was traveling to Oxford, Mississippi, in a seventy-five-foot-tractor trailer on County
Road 747, which intersects with U.S. Highway 72. This intersection provides a yield lane for
vehicles exiting County Road 747 and entering U.S. Highway 72. At approximately 5 a.m.,
while it was still dark, Arnoldo collided into Walker’s tractor-tailer. Arnoldo, Estrada, and
Garcia-Guillan all were killed.
¶3. In March 2012, Moreno filed this wrongful-death action. A jury trial was held in
December 2014, at which the court heard testimony from four witnesses, Walker, Joyce
Popwell, Valdez, and Moreno.
¶4. Walker testified that, on the morning of the accident, he conducted a routine
inspection of the tractor-trailer, and the trailer’s tail lights were working properly. When he
approached the intersection and entered the yield lane from County Road 747, he came to a
complete stop, allowing two vehicles to pass. As Walker drove onto U.S. Highway 72, he
noticed Arnoldo’s pickup-truck headlights appear over the hill, which, according to Walker,
was approximately three fourths of a mile from the intersection. Walker testified that he was
traveling between thirty and thirty-five miles per hour and was in fifth gear when the impact
occurred.
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¶5. Joyce Popwell was driving behind Arnoldo and claimed to witness the accident.
According to Popwell, Walker failed to yield or stop but drove directly into Arnoldo’s pickup
truck. Popwell stated that, while she could see Walker’s headlights, she could not see
Walker’s side lights, brake lights, or tail lights.
¶6. The Court also heard the deposition testimony from Valdez, one of the passengers in
Arnoldo’s pickup truck. Valdez testified that on November 7, he and the other passengers
departed from Decatur, Alabama, at approximately 3:30 a.m., traveling to Memphis,
Tennessee for work. After making a gas stop in Muscle Shoals, Jose and Juan fell asleep.
Within a few moments, Valdez also fell asleep. Valdez later was awakened by Arnoldo’s
scream and saw Arnoldo look back at him. Almost immediately, the accident occurred.
Valdez testified that he did not see the other vehicle involved in the accident nor did he see
whether the lights on the other vehicle were on or working properly.
¶7. After Moreno presented her case, TLSL moved for directed verdict on the following
issues: improper inspection, damages for pain and suffering, medical bills, final expense and
burial, hedonic damages, current net loss value of wages, punitive damages, and liability.
Moreno stipulated that the directed verdict be granted on all the issues except the current net-
loss-value issue, the inspection issue, and the liability issue. The trial court granted directed
verdict on each issue. Moreno raised the following issue on appeal:
Whether the trial court erred in granting TLSL’s motion for directed
verdict as to the issue of negligence.
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¶8. When reviewing a trial court’s grant or denial of a motion for directed verdict, this
Court reviews the decision de novo. Solanki v. Ervin, 21 So. 3d 552, 556 (Miss. 2009). “In
considering a motion for directed verdict, this Court must consider whether the ‘evidence in
opposition to the motion was of such quality and weight that reasonable and fair-minded
jurors in the exercise of impartial judgment could differ as to the verdict.’” McKinzie v.
Coon, 656 So. 2d 134, 137 (Miss. 1995) (citing Collins v. Ringwald, 502 So. 2d 677, 679
(Miss. 1987)). “If the evidence is sufficient to support a verdict in favor of the non-moving
party, the trial court properly denied the motion.” Henson v. Roberts, 679 So. 2d 1041, 1044-
1045 (Miss. 1996). “A directed verdict pursuant to M.R.C.P. 50(a) is not an appropriate
means for the disposition of a case so long as questions of fact are raised in the proof at
trial.” Ervin, 21 So. 3d at 556-557.
¶9. Moreno contends that there was sufficient evidence to support a verdict in her favor,
but that the trial court erroneously directed the verdict in favor of TLSL based on its own
determination of the witnesses’ credibility, instead of submitting the issue to the jury. The
trial court found that Moreno had failed to make a prima facie case on whether Walker
negligently operated the tractor-trailer and whether he improperly inspected it. Moreno
contends that Walker failed to yield the right of way and that the tractor-trailer’s lights were
not on, resulting in Arnoldo’s death. Based on the evidence presented, Moreno asserts that
a jury could have found Walker negligent. Viewing the evidence in the light most favorable
to Moreno, this Court affirms the trial court.
A. Whether Walker failed to yield the right of way.
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¶10. Generally, when a dispute of evidence is presented at trial, the issue must be presented
to the jury. When conflicting evidence was presented in Bush Construction Co. v. Walters,
250 Miss. 384, 164 So. 2d 900 (1964), this Court stated that “[i]t was a jury question whether
appellant’s driver . . . was guilty of negligence proximately contributing to the collision . .
. .” Id. at 390. In Bush, a family of three was killed when the family’s vehicle, driven by
Miles Walters (plaintiff), entered an intersection and collided with a gravel truck, owned by
Bush Construction and driven by Larry Musgrove (defendants). Id. at 388-89. There was
conflicting evidence as to whether Musgrove was speeding and failed to keep a proper
lookout when he entered the intersection, and whether Walters failed to stop at the stop sign
and created a hazard by driving into the intersection when Musgrove was speeding. Id. at
389. Although the evidence showed that the plaintiff was negligent, the Court found that the
defendants were not entitled to a directed verdict because there was evidence that Musgrove
was negligent as well. Id.
¶11. Similarly, in Mills v. Nichols, 467 So. 2d 924 (Miss. 1985), the Court found that
where there was conflicting evidence as to “whether Mills was so close to the intersection
as to constitute an immediate hazard of collision” this was a question for the jury. This Court
stated:
The evidence at trial concerning the manner in which the accident occurred
was sharply conflicting. Mills contended that Cooksley must have run the stop
sign and pulled in front of him at a time when Mills had the right of way at the
intersection. Nichols argued that Mills was under the influence of alcohol,
driving without headlights, speeding and failing to keep a proper lookout. The
physical evidence, skidmarks and damages to the truck, support Mills’
contention that the back of the trailer was still in the lefthand lane at the time
of the accident. Beyond that, it becomes a swearing contest as to which vehicle
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had preempted the intersection and which vehicle had the duty to yield. Mills
said that Cooksley pulled out at the last minute; Cooksley said that he looked
down the road and saw nothing coming. This is a classic jury question of fact.
Id. at 931.
¶12. However, “evidence which is inherently unbelievable or incredible is in effect no
evidence and is not sufficient to sustain a verdict.” Teche Lines, Inc. v. Bounds, 182 Miss.
638, 179 So. 747 (1938). In the present case, there was conflicting testimony between Walker
and Popwell as to whether the accident was a rear-end collision or a side collision. Walker
testified that when he entered the yield lane, he came to a complete stop. And when he
proceeded onto U.S. Highway 72, he saw Arnoldo’s headlights in the distance. According
to Walker, the impact occurred beyond the intersection point and when Walker had reached
about thirty miles per hour and was in fifth gear.
¶13. Popwell, however, testified that Walker never stopped nor yielded before he entered
U.S. Highway 72, but “just went on out in the middle” of the road and “he just ran into this
pickup truck.” Popwell sketched a picture of the accident she described. The Mississippi
Highway Patrol, however, concluded that Arnoldo had caused the collision by failing to yield
the right of way, following too closely and speeding.
¶14. We note that Moreno acknowledges that Popwell’s testimony was inaccurate
concerning the cause of the collision. Moreno states, “[t]he claims in the Complaint arise out
of an automobile accident where a pickup truck which Plaintiff’s decedent was driving struck
the rear of Defendant’s tractor trailer truck. . . .” Further, Moreno admitted that Popwell’s
drawing was not a true representation of the collision, stating, “Ms. Popwell’s drawing was
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not accurate in that she had the tractor trailer truck coming into the roadway from an angle
when the accident occurred.” Moreno contends that Popwell’s testimony was critical as she
was the only eye witness, but Moreno essentially discredits Popwell’s testimony by admitting
that the cause of the accident was a rear-end collision and not a side collision, as Popwell
testified to and indicated on her drawing.
¶15. Further, Valdez testified that Arnoldo could not have avoided the collision, despite
admitting that prior to the accident, he was asleep and never saw what caused the impact.
Moreno also stated that:
Defendant’s counsel indicated Plaintiff’s decedent was traveling 86 or 87
miles per hour. Defendant Walker testified Plaintiff’s decedent was three-
fourths of a mile behind him when he pulled into the roadway and that he was
traveling about 30-35 miles per hour at the time of the accident. Using simple
math, even if the tractor trailer truck was at a complete standstill the whole
time (which it was not), Plaintiff’s decedent would have had about 30 seconds
to make an avoidance maneuver if he had seen the tail lights or running lights.
Since the tractor trailer truck was moving forward during this time period,
Plaintiff’s decedent would have had even more time to spot the large vehicle
and change lanes. There is no evidence in the record Plaintiff’s decedent was
impaired in any way at the time of the wreck.
¶16. Moreno contends that this evidence was sufficient for a jury to find that Walker
negligently failed to yield the right of way and negligently operated the tractor-trailer.
Although Popwell’s and Walker’s testimony conflicted, the trial court did not erroneously
grant TLSL’s directed verdict because Popwell’s testimony was contradicted by the
Mississippi Highway Patrol report and Moreno acknowledged that Popwell’s testimony was
inaccurate and that her drawing did not properly depict the accident.
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¶17. Further, Walker had the right of way to enter U.S. Highway 72. Mississippi Code
Section 63-3-805 states in part:
The driver of a vehicle shall stop as required by this chapter at the entrance to
a through highway and shall yield the right-of-way to other vehicles which
have entered the intersection from said through highway or which are
approaching so closely on said through highway as to constitute an immediate
hazard. However, said driver having so yielded may proceed and the drivers
of all other vehicles approaching the intersection on said through highway
shall yield the right-of-way to the vehicle so proceeding into or across the
through highway.
Miss. Code Ann. § 63-3-805 (Rev. 2013)
¶18. This statute “does not require the driver of a vehicle who has already entered onto an
intersection with a through highway to yield the right-of-way to an approaching vehicle
which has neither entered the intersection nor approached so closely thereto from said
through highway as to constitute an immediate hazard. This is likewise true as to a vehicle
about to enter or cross a through highway from a private road or driveway.” Jones v. Carter,
192 Miss. 603, 7 So. 2d 519, 520 (1942).
¶19. Although Walker saw Arnoldo’s pickup truck in the distance when he proceeded onto
U.S. Highway 72, Walker had the right of way to proceed onto the highway unless the pickup
truck was so close as to constitute an immediate hazard. Walker testified that the truck was
approximately three-fourths of a mile away. See Meo v. Miller, 227 Miss. 11, 17-18, 85 So.
2d 568, 570-71 (1956) (plaintiff’s vehicle was an immediate hazard where the defendant
pulled into the intersection when plaintiff’s vehicle was only sixty-to-one-hundred feet
away).
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¶20. Based on the circumstances surrounding the case, the trial court properly granted
TLSL’s motion for directed verdict.
B. Whether the tail lights on the tractor-trailer were working.
¶21. When ruling on TLSL’s motion for directed verdict on the issue of improper
inspection, the trial court stated:
[O]n the issue of improper inspection, the -- of course, the plaintiff has the
burden of proof of making out a prima facie case on that issue. It is undisputed
that the . . . Mr. Randall Walker, the driver of this vehicle, made an inspection
on the morning of the accident before leaving the terminal or his home, or
wherever he left from. I’m not sure exactly what he said about where he was.
And during that time his testimony was that he had -- I don’t know -- ten
minutes to observe these lights and that they were on and working.
So. . . also, Defendant’s Exhibit 7, which was pre-marked as being received,
clearly show that there are lights on the back of the trailer that are - - that are
on and working.
The only proof before the Court is -- on this issue is from the testimony of Mr.
Walker, corroborated by this photo, that the lights were on when he left, and
the Plaintiffs’ witnesses on this issue, Mr. Valdez and Ms. Popwell, were not
in a position, or did not, or could not see the tail lights. Mr. Valdez testified
that he never saw the other vehicle. Well, naturally -- I think he later said he
couldn’t see the lights. Naturally, if he couldn’t see the other vehicle, he
certainly could not see the lights at all, which he -- and Ms. Popwell’s
testimony is. . . is that she was not in a position to see the tail lights. I believe
her testimony that the running lights, or whatever they are called on the trailer,
if it even had any, were not on, but from her testimony she was not in a
position to even see whether the tail lights were on or not.
So the plaintiff has failed to make out a prima facie case on the only issue of
negligence left for the jury’s decision, and therefore, the Court is directing a
verdict in this case on liability.
¶22. This Court agrees with the trial court’s ruling because Moreno failed to provide any
evidence demonstrating that the tail lights were not on prior to the collision. Moreno relies
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solely on Popwell’s and Valdez’s testimony, even though both witnesses admitted that they
neither saw nor were in a position to see Walker’s tail lights. Popwell testified that she saw
only Walker’s headlights but could not see the side lights, brake lights, or tail lights. She also
stated that if the tail lights were on, she would have noticed them. Valdez testified that he did
not see Walker’s tail lights, nor did he see Walker’s truck prior to the collision. However,
according to Walker, the tail lights were working when he conducted his inspection that
morning. Further, as the trial court noted, Walker’s testimony was corroborated by a
photograph that was taken after the collision, which showed the trailer lights working.
¶23. In Vines v. Windham, 606 So. 2d 128 (Miss. 1992), this Court found that the trial
court erroneously submitted the issue of negligence to the jury. As Windham waited at a stop
sign, intending to turn left, another driver at a traffic light motioned for Windham to cross
the intersection. Id. at 129. Windham proceeded, and his vehicle collided with Vines. Id.
Windham and Vines were the only two witnesses who testified about the negligence issue.
Id. at 131. Vines testified that Windham pulled out in front of her, and Windham testified
that he did not see Vines’s vehicle until after the impact. Id. However, this Court found that
Windham’s testimony did not establish that Vines was driving negligently. Id. at 132.
Therefore, the trial court erred by submitting this issue to the jury. Id.
¶24. Further, in McKinzie v. Coon, 656 So. 2d 134 (Miss. 1995), this Court reversed the
decision of the trial court and rendered a verdict on the issue of liability in favor of
McKenzie where the jury verdict favored Coon, although no evidence was presented showing
that the McKinzie was negligent. As Coon drove into the intersection, without noticing
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McKinzie’s approaching vehicle, she was struck. Id. at 135. Two witnesses testified that
Coon had pulled out in front of McKinzie, although McKinzie’s vehicle was in full view
from where Coon had stopped. Id. at 136. After a review of the evidence, this Court stated
that, “Coon presented nothing contrary to the evidence of McKinzie. . . . Coon did not testify
that McKinzie was speeding or was otherwise negligent. He merely stated he looked and
never saw her. . . .” Id. at 141. Although this Court reversed the trial-court judgment and
rendered a verdict on liability, it remanded the case for a trial on damages.
¶25. Similarly, Moreno has not presented any evidence to establish or contradict whether
the tail lights were on where neither of Moreno’s witnesses was in a position actually to see
the lights.
CONCLUSION
¶26. Because Moreno has failed to present any contrary evidence showing that the tail
lights were not on prior to the collision, the trial court did not err in granting a directed
verdict in favor of TLSL. Therefore, we affirm the judgment of the Circuit Court of Alcorn
County.
¶27. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
KING, COLEMAN AND MAXWELL, JJ., CONCUR.
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