___________ 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.

Th is is a diversity of citizenship action arising from a traffi c accident involving tw o tractor trailer trucks on Interstate 55 in eastern Arkansas. Plaintiff Jerry Haynes (of Arkansas) was driving a truck fo r Ozark Truck Lines (of Tennessee). Defendant Richard McCormick (o f Missouri) was driving a truck for co-defendant Bee-Line Trucking (also of Missour i). Haynes' truck (going about 66 or 67 miles per hour) came u p 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 McCormi ck and Bee-Line Trucking for damages on grounds that th e McCormick/Bee-Line truck
was being negligently operated at below the posted minimum speed limit

. The suit was originally filed by

### The Honorable Stephen M. Reasoner, Chief Judge, United States 1 

### District Court for the Eastern District of Arkansas.
-2- Haynes in Arkansas state court. Because there was complete diversity of citizenship between the plaintiff and defendants, the action was removed by the def endants to the United States District Court for the Easter n District of Arkansas. The case was tried to a federal jury sitting i n Jonesboro, Arkansas, which returned a verdict infavor 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 als o timely objected to ce rtain 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. 1

Defendants McCormick and Bee-Line filed a timely notice of appea l from the judgment of the district court under 28 U.S.C. § 1291. Defendant s raise three principal assertions of error: (1) t he district court erred in denying defendants' motions for judgment as a matter of law because th e plaintiff failed to prove defendants proximately caused plaintiff' s injuries; (2) the district court erred in instru cting 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 th e evidence did not support the amount of the jury's verdict.
Finding n o reversible error in any of the rulings complained of, we affirm the judgment of the district court.

Background The traffic accident in question occ urred at approximately 6:15 p.m. on August 28, 1990, near Osceola, Arkansas. Defendant

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McCormick testified that he was driving north on Interstate 55 when he began experiencing a problem with his truck. The truck lost powe r and would not go faster than 20-30 miles per hour. McCormick testifie d that he believed he was either running out of fu el or having a fuel filter problem.

McCormick said that he had been havi ng the fuel problem for about 35 miles, but had decide d 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 e xits he passed. McCormick testified that he was driving in the right hand lane with his emergenc y flashers on and trying to make it to the Blytheville, Arkansas, highwa y exit.
Plaintiff Haynes testified that he was also driving in the righ t hand lane travelling north on Interstate 55 behind another large tractor-traile r truck. The other tru ck 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 truc k but that he could not do
so because there were two automobiles in the left lane next to him. Hayne s also brak ed to try to stop before he hit the McCormick truck, but th e distance was too short to bring his truck to a s top. The Haynes truck hit the McCormick/Bee-Line truck from behind and Haynes was injured.

Haynes' s uit alleged that he was injured as a result of th e negligence of McCormi ck in operating his truck at a speed which was below the posted minimum speed and too slow for condit ions. Haynes alleged that Bee-Li ne was also liable for his injuries because McCormick's negligen t action s occurred within the scope of his employment for Bee-Line

. Defend ants Bee-Line and McCormick defended on the theory that Haynes ' injuries were proximately caused by his own negligence and not th e negligence of McCormick.

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Motions for Judgment as a Matter of Law Defend ants Bee-Line and McCormick first contend that they wer e entitled to judgment as a matter of law under Federal Rule of Civi l Procedure 50. Rule 50 provides in relevant part:

(a) Judgment as a Matter of Law. (1) If d uring a trial by jury a party has been full y heard on an issue and there is no legally sufficien t evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issu e against that party and may grant a moti on for judgment as a matter of law . . . .

We review de novo the denial of a mo tion for judgment as a matter of law, applying the same standard as the district court. Fox v. T- H Continental Limited P artnership , 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 ona motion for [judgment as a matter of law], the district court must (1) consider the evidence in the light most f avorable 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 fact s that the prevailing party's evidence te nded to prove, and (4) give the prevailing party the benefit of al l favorable inferences that may reasonably be drawn fro m th e facts proved. That done, the court must then den y the mo tion if reasonable persons could differ as to th e conclusions to be drawn from the evidence.

TEC Floor Corp. v. Wal-Mart Stores , 4 F.3d 599, 601 (8th Cir.1993) (quotin g Western Am., Inc. v. Aetna Casualty & Surety Co. , 915 F.2d 1181, 1183 (8th Cir. 1990)).
Despite t his heavy burden, Bee-Line and McCormick contend that they
wer e entitled to judgment as a matter of law because there was n o substantial evidence that the accident and resulting injuries occurred fro m McCormick driving below the minimum speed limit. They say that it is just as likely that the accident would have

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occurred if McCormick was driving 45 miles per hour which is the authorize d minimumspeed. Defendants argue that the only way the jury could hav e found for the plaintiff on the proximate cause issue was by speculation an d 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 defendant s were not entitled to judgment as a matter of law. See TE C Floor Corp. , 4 F.3d at 601-602. See also John C heeseman Trucking, Inc. v. Douga n , 853 S.W.2d 278, 280-81 (Ark. 1993). Both Haynes and McCormic k testified about the accident as did the state tr ooper who investigated the
acc ident at the scene. There was plenty of evidence, both direct an d 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.
According ly, we hold that the district court did not err in failing to grant the defe ndants' motions for judgment as a matter of law.

Jury Instructions Next the defendants make several challenges claiming that th e 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 perso n (such as the plaintif f Haynes) is charged with when he finds himself in a sudden emergency situation:

A person who is suddenly and unexpected ly confronted with danger to himself or others, not caused by his ow n negligence, is not required to use the same judgment that is required of him in calmer and more d eliberate moments. He is requir ed to use only the care a reasonably careful person would use in the same situation. However, thi s rule applies in evaluating the actions of Mr. Haynes only if you find that the emergency situation was not

### -6- caused by any negligence on Mr. Haynes' part.
(Jury Instruction No. 14).

Bee-Line and McCormick contend that under Arkansas law the sudde n emergency instruction should not have been given, if the emergency arose
even in part from the negligence of Haynes himself. They argue that it wa s 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 fo r some negligence on his own part in failing to start braking in time.

We disagree. Upon our review of the record we believe that th e district court was co rrect 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 s lowly on a busy interstate highway. Therefore, it was up to the jury to e valuate the reasonableness of Hayn es' conduct under the relaxed standard of the sudden emergenc y instruction. This is exactly what Instruction No. 14 said.

We do not believe that the cases from the Arkansas Supreme Cour t cited b y defendants require a different result. It is true that on th e surface t he Arkansas cases may seem to be in some disarray; however, w e belie ve that carefully read the results in the cases can be reconcile d based upon variations in the facts.

In Druck enmiller v. Cluff , 873 S.W.2d 526, 530-32 (Ark. 1994), th e Arkansas Supreme Court reviewed a number of its decisions on the sudde n emerge ncy instruction and concluded that the instruction should not b e given when "an emergency arises wholly or partia lly 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 properl y refuse d to give the instruction because Mrs. Druckenmiller was hersel f partly responsible for the emergency. She had a clear view of a vehicle turning into the inte rsection in front of her and yet she failed to brake in time.

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Similarly, the Arkans as Supreme Court ruled in Frisby v. Agerton Logging, Inc. , No. 95-816 (Feb. 19, 1996) (slip op. at 6-8), that the sudde n emergency instruction should not be given where there was evidence that th e vehicles of both plai ntiff and defendant were over the center line of the road when the accident occurred.

On the ot her hand, the Arkansas Supreme Court has upheld the giving of the sudden emergen cy 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 othe r cars. He tried to avoid the other vehicles but was unable to stop before hitting them. Th e plaintiffs argued that the trial court erred in giving the sudden emergenc y instruction on ground s similar to the arguments advanced by McCormick and Bee-Line here. They contended that Tritt must have been at least partiall y negligent in failing to maintain a proper lookout, failing to maintai n 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 dange r with which he was confronted, but instead only becam e aware of the danger caused by another (or others) , perceived th e emergency and acted in accordance with the stress ca used by the danger. The issue became one o f fact as to whether Tritt used only the care that a reasonably careful person would use in the sam e situa tion, not whether he was entitled to [the sudde n emergency instruction]. Tritt clearly was entitled t o the sudden emergency instruction, since he did not create the emergency.

893 S.W. 2d at 792 (citations omitted).

Thus, th e common rationale of the recent Arkansas cases appears t o 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

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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 co ntrary is, or reasonably should be apparent, that e very other person will use ordinary care and obe y the law. To act on that assumption is not negligence.
(Jury Instruction No. 13).

Bee-L ine and McCormick contend that, although this instruction i s normally correct in h ighway accident cases, it was error for the court to give that instruction here, because it created a n inference or presumption that Haynes was exercising ordinary care. They argue that this instructio n can only be given in a case where there is no di spute over whether a party
wa s using ordinary care. They further say that this instructio n 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 likel y that the ju ry interpreted the instruction's reference to "every person usin g ordina ry care" to apply equally to plaintiff Haynes and defendan t McCormick, i.e. , if either was using ordinary care he was entitled t o assume the other woul d also use such care. Moreover, it appears that the defendants' argument may prove too much. If their view were adopted the instru ction could seldom be given, because in nearly every conteste d accident case the defendants contend that the pl aintiff was also partly at fault.

We believe that the instruction correctly states Arkansas law an d that the district court did not err in giving the instruction

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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) Instr uctions regarding the Violation of Statutes, Ordinances or Regulations Appellant s 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, th e defendants attack the giving of Instruction No. 18 which said that violation o f a statute or ordinance (here the statute providing
a minimum speed limit of 45 and also a statute prohibiting impeding th e normal flow of traffic) could be evidence of negligence:

A viol ation of one or more of these statutes, althoug h not necessar ily negligence, is evidence of negligence to be co nsidered by you along with all the other facts an d circumstances in the case.
(Jury Instruction No. 18).
Second, the defendants attack the gi ving of Instruction No. 19 which sai d that the violation of a federal highway regulation prohibiting th e operation of a vehicle in a manner likely to cause an accident or breakdow n could be evidence of negligence:

A violation of this regulation, although not necessarily negligence, is evidence of negligence t o be considered by you al ong with all the other facts and circumstances i n this case.
(Jury Instruction No. 19).

De fendants argue that both of these instructions created confusio n for the jury and suggested that they were to apply

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something other than the ordinary tort law standard of care.

We disag ree. Both of these instructions are modelled on Arkansas ' Mod el Jury Instruction 903, which is a commonly accepted formulation o f Arkansas law on evidence of negligence. See , e.g. , Russell v. Watkins , 67 8 S.W.2d 762, 765 (Ark. 1984). We see nothing err oneous about giving either of these instructions which properly said that the jury could conside r violat ions of statutes or regulations (if proved) as evidence o f negligence.

Motion for a New Trial or Remittitur Based on the Excessiveness of th e Verdict The jury awarded Haynes $250,000 in compensatory damages. Bee-Line and McCormick contend that Haynes only submitted evidence of a total o f $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 on ly for clear abuse of discretion. Norton v. Caremark, Inc. , 20 F.3d 330, 334, 34 0 (8th Cir. 1994). The defendants have not satisfied that standard here

. As Haynes notes, there was plenty of testimony about his continued pain an d suffering and his loss of use of his leg from the accident. Thus, the jur y was entitled to include in its award Haynes' fut ure pain and suffering and possible loss of future income in addition to the medical expenses and los t wages which had already occurred.

We bel ieve that the district court properly left the amount o f 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 r easons stated above, the judgment of the district court is in all respects affirmed.

### -11- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.