Scott v. McClain , 296 Ark. 527 ( 1988 )

David Newbern, Justice.

This is an automobile accident case. The appellants, Melba Dean Scott, and her husband, C.L. Scott, sued the appellee, Danny E. McClain, alleging he negligently caused injuries to Mrs. Scott and property damage to the Scotts’ automobile. Mrs. Scott was driving south on U.S. Highway 71. She was being followed by a pickup truck with a camper or “minihome” being driven by Mr. Haack which, in turn, was being followed by Mr. McClain driving his pickup truck. The evidence showed that Mrs. Scott looked in her rearview mirror and saw only Mr. Haack’s truck and camper. She signaled for a left turn, and as she turned her car was struck in the side by Mr. McClain’s truck, which had pulled around to pass Mr. Haack. Mrs. Scott testified she could not see around the Haack vehicle to her rear, and although she did not check her outside mirror it would have made no difference, as she could not have seen around the Haack vehicle. Mr. McClain testified that when he pulled out to pass he could not see around the Haack vehicle in front of him. He testified he signaled his lane change and peered around the camper but did not see Mrs. Scott’s vehicle. The jury returned a verdict in favor of Mr. McClain. We affirm.

The Scotts contend first that the preponderance of the evidence was clearly in their favor. Second, they contend they were entitled to an instruction on the responsibility for defective brakes. Third, they argue the court should have disqualified a defense attorney who is a state senator and who, they allege, was brought into the case by Mr. McClain just six days before trial solely for the purpose of exerting “influence” on the jury.

1. Preponderance of the evidence

Mrs. Scott’s argument on this point is largely based on the rule that the driver of the vehicle to the rear has a duty to yield to a forward vehicle which has signalled for a left turn, citing 2 P. Kelly, Blashfield Automobile Law and Practice, § 113.9 (3rd ed. Repl. 1979). Mr. McClain argues he had no way of seeing Mrs. Scott’s vehicle or the left turn signal until, as he put it, she “darted” in front of him as he was passing. There is no question but that Mrs. Scott had the right to make her turn, just as there is no question that Mr. McClain was passing in a place where it was not prohibited and he was driving within the posted speed limit.

The only basis on which we could set aside this jury verdict would be if we found it to be “clearly against the preponderance of the evidence,” thus warranting the granting of the new trial motion made by the Scotts, Ark. R. Civ. P. 59(a)(6), or if we found the verdict to have been the subject of “passion or prejudice.” Duggar v. Arrow Coach Lines, Inc., 288 Ark. 522, 707 S.W.2d 316 (1986); AAA T.V. & Stereo Rentals, Inc. v. Crawley, 284 Ark. 83, 679 S.W.2d 190 (1984). Here the jury could have found either that neither party was negligent or that both of them were and that Mrs. Scott’s negligence equalled or exceeded that of Mr. McClain. In either case, the defendant’s verdict would have been proper. We find no evidence of passion or prejudice in the jury’s verdict. Where a motion for a new trial is based on the allegation that the jury verdict was clearly against the preponderance of the evidence, we will not reverse the denial of the motion if there is substantial evidence to support the verdict, giving it the benefit of all reasonable inferences permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985).

We were given pause by the fact that at one point the jury, after having retired to consider the case, returned to the courtroom to ask what to do if they found no negligence on the part of either party, and the judge told them to render a verdict for the defendant. While we are not certain that was technically the correct procedure, and the point is not argued by the Scotts, the short answer is that there was no objection made when the court responded to the question. See Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986).

2. The brakes instruction

Mr. and Mrs. Scott asked the court to give an instruction that violation of a statute is evidence of negligence (AMI 903). Their argument was that Ark. Code Ann. § 27-37-501(a) (1987) requires that a motor vehicle have proper brakes, and there was evidence that Mr. McClain’s truck’s brakes were defective. The evidence referred to was the fact that Mr. McClain’s truck left a skid mark from one wheel only.

The state trooper who investigated the accident was asked what could have caused Mr. McClain’s truck to leave a skid mark made only by one wheel. He responded that there could have been several explanations. At one point, on redirect examination, he seemed to say the vehicle had defective brakes. He testified: “There would be several other reasons possibly for the one skid mark. The vehicle. . .may have had a defective right front wheel and the brakes on the right front wheel were not working proper to stop the tire when the skid mark was made. . . .” However, on recross examination, some of the questions and answers were:

Q: Officer, there was nothing in your investigation to indicate that Mr. McClain’s right front wheel was in any way defective was there?

A: No, sir.

Q: Or that the brakes were in any way defective?

A: No, sir.

No testimony was given to show that Mr. McClain’s truck was inspected or found to be defective in any way. The officer’s speculation among possible causes of the one skid mark was not a sufficient basis to give the requested instruction. See Arkansas Power & Light Co. v. Cummins, 182 Ark. 1, 28 S.W.2d 1077 (1930).

3. Attorney disqualification

The Scotts admit in their brief that they can cite no case holding that the adding of co-counsel before the trial begins constitutes reversible error. They cite the only rule on the matter of which we are aware, that is, that counsel may be disqualified if added after voir dire of the jury panel in which questions might have been asked to reveal relationships between the new counsel and prospective jurors. In re Winslow’s Will, 146 Ia. 67, 124 N.W. 895 (1910). That rule does not apply in this case.

The Scotts’ counsel argues that he accused counsel for Mr. McClain of bringing the senator into the case for the purpose of influencing the jurors and that Mr. McClain’s lawyer admitted as much. Jurors decide cases under oath to do so impartially considering only the facts and the law. It is inevitable that some lawyers command more respect in the community than others, just as some are more skilled than others. While the skill or prestige of counsel may give one party or the other an edge, we have had enough experience with the jury system to indulge our faith that fair results will be reached regardless of these factors, and any rule we might try to impose to equalize counsel in every case would be unnecessary and completely impossible to administer.

Affirmed.

Purtlb, J., dissents.