{ "id": 5370015, "name": "Jerry CARLEW v. Evie WRIGHT", "name_abbreviation": "Carlew v. Wright", "decision_date": "2004-02-19", "docket_number": "02-1387", "first_page": "208", "last_page": "218", "citations": [ { "type": "official", "cite": "356 Ark. 208" }, { "type": "parallel", "cite": "148 S.W.3d 237" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "354 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36067 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0695-01" ] }, { "cite": "347 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683227 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0423-01" ] }, { "cite": "304 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880919 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0070-01" ] }, { "cite": "22 Ark. App. 267", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6663162 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/22/0267-01" ] }, { "cite": "353 Ark. 730", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155530 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0730-01" ] }, { "cite": "298 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889937 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0310-01" ] }, { "cite": "Ark. Code Ann. \u00a7 21-9-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "292 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871159 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "holding that absent a showing of prejudice we will not reverse" }, { "parenthetical": "holding that absent a showing of prejudice we will not reverse" } ], "opinion_index": 0, "case_paths": [ "/ark/292/0630-01" ] }, { "cite": "719 N.E. 2d 862", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11551728 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ne2d/719/0862-01" ] }, { "cite": "114 S.W.3d 911", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9090858 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/sw3d/114/0911-01" ] }, { "cite": "833 A.2d 825", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9084776 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/a2d/833/0825-01" ] }, { "cite": "294 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895733 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "holding that a new trial was properly granted when the verdict was clearly against the preponderance of the evidence in a case in which the jury was given a comparative-fault instruction" }, { "parenthetical": "holding that a new trial was properly granted when the verdict was clearly against the preponderance of the evidence in a case in which the jury was given a comparative-fault instruction" } ], "opinion_index": 0, "case_paths": [ "/ark/294/0013-01" ] }, { "cite": "324 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158760 ], "weight": 6, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0120-01" ] } ], "analysis": { "cardinality": 699, "char_count": 16592, "ocr_confidence": 0.702, "pagerank": { "raw": 2.1659714397208117e-07, "percentile": 0.7704690505122114 }, "sha256": "7b1dde35ced8419652487af21bb2963267116b5e87dd064cacb55726ae779219", "simhash": "1:affa823e170c5d72", "word_count": 2722 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Dickey, C.J., and Hannah, J., not participating." ], "parties": [ "Jerry CARLEW v. Evie WRIGHT" ], "opinions": [ { "text": "Ray Thornton, Justice.\nOn May 5, 1999, a vehicle driven by appellant, Jerry Carlew, collided with an automobile driven by appellee, Evie Wright. The accident occurred when appellant pulled out of a parking lot and attempted to cross two eastbound lanes of Race Street in Searcy in order to complete a left turn into two westbound lanes. After exiting the parking lot, appellant\u2019s vehicle was struck in the second eastbound lane by appellee\u2019s automobile. A truck was traveling in the first eastbound lane beside, appellee\u2019s automobile. Because the truck was between them, neither appellant nor appellee saw each other until the vehicles were close together in appellee\u2019s eastbound lane.\nOn August 11, 2000, appellee filed a negligence action against appellant. In her complaint, appellee alleged that appellant\u2019s negligence during the accident caused her to suffer injuries and to incur damages. In August of 2002, a jury trial was held to consider appellee\u2019s complaint. After hearing the evidence, the jury found in favor of appellee and awarded her $72,000 in damages. In its apportionment of liability, the jury found appellant to be sixty percent at fault and appellee to be forty percent at fault. Based on this apportionment, appellee\u2019s damages were reduced to $43,200.\nOn August 21, 2002, appellee filed a motion seeking a new trial. In her motion, appellee argued that the jury\u2019s verdict was not supported by a preponderance of the evidence. After holding a hearing on appellee\u2019s motion, the trial court entered an order granting the request for a new trial.\nIt is from this order that appellant appeals. We affirm the trial court\u2019s order granting a new trial.\nIn his first point on appeal, appellant asserts that the trial court abused its discretion when it granted appellee\u2019s motion for a new trial. Rule 59 of the Arkansas Rules of Civil Procedure governs motions for a new trial. The Rule provides:\nA new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any' of the following grounds materially affecting the substantial rights of such party: ... (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.\nId. We have explained that when determining whether a new trial is merited pursuant to this rule, the trial court has limited discretion because it may not substitute its view of the evidence for the jury\u2019s except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). The trial court may grant a new trial when a miscarriage of justice has occurred. Id. In reviewing the trial court\u2019s granting of a motion for new trial, the test is whether the judge abused his or her discretion. Id. We have explained that this standard requires a showing of \u201cclear\u201d abuse, or \u201cmanifest\u201d abuse by acting improvidently or thoughtlessly without due consideration. Id. Finally, we have noted that a showing of 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. Id.\nMindful of the applicable standard of review, we must consider, whether the trial court abused its discretion when it granted appellee\u2019s motion for a new trial. In its order granting appellee\u2019s motion, the trial court wrote:\nAfter hearing the arguments of counsel, carefully considering all applicable pleadings, attached exhibits, and the evidence as adduced at the time of trial, the court makes the following findings:\n(1) That the verdict of the jury was clearly contrary to the \u25a0 preponderance of the evidence, to the degree that it shocked the court, and resulted in a miscarriage of justice.\nA review of the evidence presented at trial is useful in our determination of whether the trial court abused its discretion in granting appellee\u2019s motion for a new trial. At trial, appellant explained how the accident occurred. He testified that prior to the accident, he was at a stop sign attempting to turn left out of a parking lot, and that he was planning to travel in a westbound direction. Appellant characterized the traffic as heavy and explained that he could not see appellee\u2019s car because a truck was in a lane between the two vehicles. After waiting briefly, he pulled out into traffic and encountered appellee\u2019s vehicle, which was traveling in the eastbound inside lane. Appellant noted that appellee\u2019s automobile was \u201cvery close\u201d before he saw it and that appellee did not have an opportunity to avoid the collision. He testified that the accident was an \u201cerror in judgment\u201d on his part. Appellant also testified that he believed that appellee \u201cdid nothing wrong in the operation of her vehicle.\u201d\nOfficer Charlie Perry, from the Searcy Police Department, investigated the accident and testified about his findings during the trial. At the scene of the accident, appellant informed Officer Perry that the accident occurred when he was attempting to make a left turn out of the parking lot. Appellant told Officer Perry that when he turned into the eastbound traffic, his view was obstructed and that he did not see a vehicle in the inside lane. Officer Perry also testified that the debris from the accident was found in the inside eastbound lane.\nAppellee also described the accident. She testified that prior to the accident she was traveling eastbound at a rate of thirty-five miles per hour. Appellee was driving beside a truck, which was in the outside eastbound lane, and explained that she did not see appellant\u2019s automobile until it was \u201cdirectly in front\u201d of her, immediately before the collision occurred.\nAt the close of the evidence, the trial court gave the following jury instructions:\nIn determining whether the driver of a motor vehicle was negligent you may consider the following rules of the road:\nIt is the duty of the driver of a motor vehicle to keep a lookout for other vehicle or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case.\nA failure to meet the standard of conduct required by this rule is negligence.\nThere was in force in the State of Arkansas at the time of the occurrence a statute which provided:\nThe driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on the highway.\nA violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.\nAfter reviewing the evidence presented at trial, and after considering the foregoing jury instructions, we conclude that the trial court did not abuse its discretion in granting appellee\u2019s motion for a new trial and in finding that the verdict was clearly contrary to the preponderance of the evidence. The trial court did not abuse its discretion because the overwhelming evidence established that appellant\u2019s negligence was the cause of the accident. Specifically, the evidence established that appellant\u2019s failure to maintain a proper lookout and his failure to yield the right-of-way to appellee\u2019s vehicle caused'the accident. No evidence was presented that would have attributed any of the liability to appellee. In fact, appellant testified that appellee was not at fault and that an error in his judgment led to the accident. Notwithstanding this lack of evidence, the jury apportioned forty percent of the fault for the accident to appellee. Under these circumstances, we cannot say that the trial court abused its discretion in granting appellee\u2019s motion for a new trial. See Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987) (holding that a new trial was properly granted when the verdict was clearly against the preponderance of the evidence in a case in which the jury was given a comparative-fault instruction); see also Connor v. Bjorklund, 833 A.2d 825 (R.I. 2003); Jones v. Idles, 114 S.W.3d 911 (Tenn. 2003); Barnard v. Himes, 719 N.E. 2d 862 (Ind. 1999).\nIn his second point on appeal, appellant contends that the trial court erred when it entered an order making certain findings. Appellant asserts that these findings were erroneous because they were entered \u201cwithout conducting a hearing and based solely on comments made by [appellee\u2019s] counsel.\u201d The challenged findings were made in an order granting appellant\u2019s motion for a continuance. Appellant requested a continuance because Farm Bureau did not enter its appearance as appellant\u2019s counsel until approximately one month before the case was scheduled for trial. Farm Bureau\u2019s late entry into the case was based on a prior erroneous determination that appellant\u2019s policy did not cover the accident. When Farm Bureau discovered the error, an entry of appearance was filed by appellant\u2019s attorney, who also filed a motion seeking to continue the trial. A hearing was held on the motion. During the hearing, appellant\u2019s attorney outlined the events surrounding Farm Bureau\u2019s actions. Thereafter, the trial court granted appellant\u2019s motion for a continuance and made findings that criticized Farm Bureau\u2019s delay in not timely acknowledging coverage, and suggested that a hearing on sanctions could be held.\nA review of the hearing held on appellant\u2019s motion for a continuance demonstrates that appellant\u2019s attorney was able to adequately explain the circumstances surrounding Farm Bureau\u2019s actions and its late entrance into the case. Additionally, we note that there was no hearing held or order entered in which sanctions were imposed upon Farm Bureau. Moreover, there was no evi-' dence to establish that the challenged findings impacted the trial in any respect. Based on appellant\u2019s failure to show that the trial court\u2019s findings were prejudicial, and noting that the continuance requested by appellant was granted, we affirm the trial court. See Robinson v. Abbott, 292 Ark. 630, 731 S.W.2d 782 (1987) (holding that absent a showing of prejudice we will not reverse).\nIn his third point on appeal, appellant argues that there was not substantial evidence to support the jury\u2019s verdict on the issue of whether appellant was acting within the scope of his employment at the time of the accident. This issue is based on language found in Ark. Code Ann. \u00a7 21-9-301 (Supp. 2003), which provides that appellant, as a county judge, is entitled to immunity from liability and from suit for damages except to the extent that he is covered by liability insurance. We have applied this immunity to employees of political subdivisions who were performing their officials duties at the time the alleged acts of negligence occurred. See Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989). Thus, if it was determined that the accident occurred while appellant was performing his official duties as a county judge, he would be immune from liability and damages beyond the limits of the liability insurance. Evidence was presented to the jury regarding appellant\u2019s actions prior to the accident and the issue was submitted to the jury. The jury concluded that a preponderance of the evidence did not establish that at the time of the accident appellant was acting within the scope of his employment as a county judge.\nAppellant\u2019s challenge to the jury\u2019s verdict was not properly preserved for our review because he failed to move for a directed verdict on this issue during or after the trial. We have held that the appropriate time to challenge the sufficiency of the evidence to support each element of a cause of action is by a directed-verdict motion. See Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). The failure to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence, will constitute a waiver of any question pertaining to the sufficiency of the evidence to support a jury verdict. Id.\nIn this case, appellant\u2019s attorney made general motions for directed verdicts on the issues of liability and damages at the close of his case-in-chief, and he renewed those motions at the close of appellee\u2019s case-in-rebuttal. These general motions did not address the issue of appellant\u2019s statutory immunity. Because appellant failed to make a motion for a directed verdict on the issue of appellant\u2019s immunity pursuant to Ark. Code Ann. \u00a7 21-9-301, this issue has been waived, and we do not consider it on appeal.\nAppellant also contends that the trial court erred by-refusing to allow a proffer of certain evidence. Rule 103 of the Arkansas Rules of Evidence governs the proffer of evidence. A trial court\u2019s failure to allow a proffer of excluded evidence has been held to be erroneous. See Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987). However, w\u00e9 have noted that the trial court may control the form and the time of the proffer. See Arkansas Valley Electric Cooperative Corp. v. Davis, 304 Ark. 70, 800 S.W.2d 420 (1990).\nIn the case now before us, appellant identifies two occasions in which the trial court \u2018.\u2018refused\u201d to allow proffers. First, appellant argues that the trial court refused to allow a proffer of testimony from several nurses, who worked with appellee, and who had encountered medical problems, but were able to continue working as nurses. The trial court did not permit their testimony because it concluded that the testimony would be irrelevant and that it was more prejudicial than probative. When the trial court made this determination, appellant\u2019s attorney requested to proffer the proposed testimony and the trial court denied the request, but noted that it would allow the proffer at a later time. At the conclusion of the trial, appellant\u2019s attorney was permitted to proffer the excluded testimony. Because appellant was permitted to proffer the testimony, and because he has failed to establish that a delay in the proffer was prejudicial, we affirm the trial court.\nNext, appellant argues that the trial court erred by refusing to allow him to state his specific objections to the holding of a pretrial hearing. The hearing was held to determine the admissibility of medical evidence. A review of the relevant colloquy establishes that while the trial court declined to allow appellant to present verbal arguments in support of his objections to the pretrial hearing, the trial court gave appellant\u2019s attorney the opportunity to put his objections in written form and to submit them to the trial court. The record reveals that appellant\u2019s attorney failed to file a written objection to the trial court\u2019s decision to hold the pretrial hearing.\nThe record also reveals that appellant\u2019s attorney participated fully in the pretrial hearing. Because appellant has failed to demonstrate that the trial court\u2019s action caused him to suffer prejudice, we affirm the trial court on this issue.\nThe remaining allegations of error raised by appellant involve various evidentiary rulings. In our review of such issues, we are asked to determine whether the trial court abused its discretion. See Columbia National Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002). A determination of whether the trial court abused its discretion on an evidentiary matter is factually intensive. Because we recognize that the facts surrounding these matters may change during the new trial of this case, we decline to review the trial court\u2019s evidentiary rulings in this appeal.\nAffirmed.\nDickey, C.J., and Hannah, J., not participating.\nWe note that appellant argues that the jury\u2019s apportionment of fault was correct because appellee testified that she was born \u201clegally blind,\u201d a condition that has been corrected by prescription lenses since appellee was in the second grade. However, no evidence was presented to establish a link between appellee\u2019s eyesight and the accident.\nOn November 24,2003, appellant\u2019s attorney filed a motion requesting that we take notice of Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003), in our consideration of this appeal. We have reviewed Dovers, and have determined that it is not dispositive of any issue involved in this case.", "type": "majority", "author": "Ray Thornton, Justice." } ], "attorneys": [ "David A. Hodges, for appellant.", "McMath Woods, PA, by: Paul E. Harrison; and John Patterson, for appellee." ], "corrections": "", "head_matter": "Jerry CARLEW v. Evie WRIGHT\n02-1387\n148 S.W.3d 237\nSupreme Court of Arkansas\nOpinion delivered February 19, 2004\n[Rehearing denied April 1, 2004.]\nDavid A. Hodges, for appellant.\nMcMath Woods, PA, by: Paul E. Harrison; and John Patterson, for appellee.\nDickey, C.J., and Hannah, J., not participating." }, "file_name": "0208-01", "first_page_order": 230, "last_page_order": 240 }