___________

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.

This is a diversity of citizenship action arising from a traffic

accident involving two tractor trailer trucks on Interstate 55 in eastern

Arkansas. Plaintiff Jerry Haynes (of Arkansas) was driving a truck for

Ozark Truck Lines (of Tennessee). Defendant Richard McCormick (of

Missouri) was driving a truck for co-defendant Bee-Line Trucking (also of

Missouri). Haynes' truck (going about 66 or 67 miles per hour) came up

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 McCormick and

Bee-Line Trucking for damages on grounds that the 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 defendants to the United States District Court for the Eastern

District of Arkansas. The case was tried to a federal jury sitting in

Jonesboro, Arkansas, which returned a verdict in favor 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 also

timely objected to certain 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 appeal

from the judgment of the district court under 28 U.S.C. § 1291. Defendants

raise three principal assertions of error: (1) the district court erred in

denying defendants' motions for judgment as a matter of law because the

plaintiff failed to prove defendants proximately caused plaintiff's

injuries; (2) the district court erred in instructing 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 the

evidence did not support the amount of the jury's verdict.

Finding no reversible error in any of the rulings complained of, we

affirm the judgment of the district court.

Background

The traffic accident in question occurred at approximately 6:15 p.m.

on August 28, 1990, near Osceola, Arkansas. Defendant
-3-

McCormick testified that he was driving north on Interstate 55

when he began experiencing a problem with his truck. The truck lost power

and would not go faster than 20-30 miles per hour. McCormick testified

that he believed he was either running out of fuel or having a fuel filter

problem. 

McCormick said that he had been having the fuel problem for about 35

miles, but had decided 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 exits he passed. McCormick

testified that he was driving in the right hand lane with his emergency

flashers on and trying to make it to the Blytheville, Arkansas, highway

exit.

Plaintiff Haynes testified that he was also driving in the right hand

lane travelling north on Interstate 55 behind another large tractor-trailer

truck. The other truck suddenly switched from the right to the left lane

and Haynes found himself coming up very quickly behind the slow-moving BeeLine truck driven by McCormick. Haynes said that he tried to move to the

left lane to avoid running into McCormick's truck but that he could not do

so because there were two automobiles in the left lane next to him. Haynes

also braked to try to stop before he hit the McCormick truck, but the

distance was too short to bring his truck to a stop. The Haynes truck hit

the McCormick/Bee-Line truck from behind and Haynes was injured. 

Haynes' suit alleged that he was injured as a result of the

negligence of McCormick in operating his truck at a speed which was below

the posted minimum speed and too slow for conditions. Haynes alleged that

Bee-Line was also liable for his injuries because McCormick's negligent

actions occurred within the scope of his employment for Bee-Line.

Defendants Bee-Line and McCormick defended on the theory that Haynes'

injuries were proximately caused by his own negligence and not the

negligence of McCormick.
-4-

Motions for Judgment as a Matter of Law

Defendants Bee-Line and McCormick first contend that they were

entitled to judgment as a matter of law under Federal Rule of Civil

Procedure 50. Rule 50 provides in relevant part:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue

against that party and may grant a motion for judgment as

a matter of law . . . .

We review de novo the denial of a motion for judgment as a matter of

law, applying the same standard as the district court. Fox v. T-H

Continental Limited Partnership, 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 on a motion for [judgment as a matter of law],

the district court must (1) consider the evidence in the

light most favorable 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 facts

that the prevailing party's evidence tended to prove, and

(4) give the prevailing party the benefit of all

favorable inferences that may reasonably be drawn from

the facts proved. That done, the court must then deny

the motion if reasonable persons could differ as to the

conclusions to be drawn from the evidence.

TEC Floor Corp. v. Wal-Mart Stores, 4 F.3d 599, 601 (8th Cir.1993) (quoting

Western Am., Inc. v. Aetna Casualty & Surety Co., 915 F.2d 1181, 1183 (8th

Cir. 1990)).

Despite this heavy burden, Bee-Line and McCormick contend that they

were entitled to judgment as a matter of law because there was no

substantial evidence that the accident and resulting injuries occurred from

McCormick driving below the minimum speed limit. They say that it is just

as likely that the accident would have
-5-

occurred if McCormick was driving 45 miles per hour which is the authorized

minimum speed. Defendants argue that the only way the jury could have

found for the plaintiff on the proximate cause issue was by speculation and

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 defendants

were not entitled to judgment as a matter of law. See TEC

Floor Corp., 4 F.3d at 601-602. See also John Cheeseman Trucking, Inc. v.

Dougan, 853 S.W.2d 278, 280-81 (Ark. 1993). Both Haynes and McCormick

testified about the accident as did the state trooper who investigated the

accident at the scene. There was plenty of evidence, both direct and

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. 

Accordingly, we hold that the district court did not err in failing

to grant the defendants' motions for judgment as a matter of law. 

Jury Instructions

Next the defendants make several challenges claiming that the

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 person

(such as the plaintiff Haynes) is charged with when he finds himself in a

sudden emergency situation:

A person who is suddenly and unexpectedly confronted with

danger to himself or others, not caused by his own

negligence, is not required to use the same judgment that

is required of him in calmer and more deliberate moments.

He is required to use only the care a reasonably careful

person would use in the same situation. However, this

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 sudden

emergency instruction should not have been given, if the emergency arose

even in part from the negligence of Haynes himself. They argue that it was

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 for

some negligence on his own part in failing to start braking in time. 

We disagree. Upon our review of the record we believe that the

district court was correct 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 slowly on a busy interstate

highway. Therefore, it was up to the jury to evaluate the reasonableness

of Haynes' conduct under the relaxed standard of the sudden emergency

instruction. This is exactly what Instruction No. 14 said.

 We do not believe that the cases from the Arkansas Supreme Court

cited by defendants require a different result. It is true that on the

surface the Arkansas cases may seem to be in some disarray; however, we

believe that carefully read the results in the cases can be reconciled

based upon variations in the facts.

In Druckenmiller v. Cluff, 873 S.W.2d 526, 530-32 (Ark. 1994), the

Arkansas Supreme Court reviewed a number of its decisions on the sudden

emergency instruction and concluded that the instruction should not be

given when "an emergency arises wholly or partially 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 properly

refused to give the instruction because Mrs. Druckenmiller was herself

partly responsible for the emergency. She had a clear view of a vehicle

turning into the intersection in front of her and yet she failed to brake

in time. 
-7-

Similarly, the Arkansas Supreme Court ruled in Frisby v. Agerton Logging,

Inc., No. 95-816 (Feb. 19, 1996) (slip op. at 6-8), that the sudden

emergency instruction should not be given where there was evidence that the

vehicles of both plaintiff and defendant were over the center line of the

road when the accident occurred. 

On the other hand, the Arkansas Supreme Court has upheld the giving

of the sudden emergency 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 other cars. He tried to avoid

the other vehicles but was unable to stop before hitting them. The

plaintiffs argued that the trial court erred in giving the sudden emergency

instruction on grounds similar to the arguments advanced by McCormick and

Bee-Line here. They contended that Tritt must have been at least partially

negligent in failing to maintain a proper lookout, failing to maintain

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 danger

with which he was confronted, but instead only became

aware of the danger caused by another (or others),

perceived the emergency and acted in accordance with the

stress caused by the danger. The issue became one of

fact as to whether Tritt used only the care that a

reasonably careful person would use in the same

situation, not whether he was entitled to [the sudden

emergency instruction]. Tritt clearly was entitled to

the sudden emergency instruction, since he did not create

the emergency.

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

Thus, the common rationale of the recent Arkansas cases appears to

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
-8-

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 contrary is, or reasonably should be apparent,

that every other person will use ordinary care and obey

the law. To act on that assumption is not negligence.

(Jury Instruction No. 13).

Bee-Line and McCormick contend that, although this instruction is

normally correct in highway accident cases, it was error for the court to

give that instruction here, because it created an inference or presumption

that Haynes was exercising ordinary care. They argue that this instruction

can only be given in a case where there is no dispute over whether a party

was using ordinary care. They further say that this instruction

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 likely that

the jury interpreted the instruction's reference to "every person using

ordinary care" to apply equally to plaintiff Haynes and defendant

McCormick, i.e., if either was using ordinary care he was entitled to

assume the other would also use such care. Moreover, it appears that the

defendants' argument may prove too much. If their view were adopted the

instruction could seldom be given, because in nearly every contested

accident case the defendants contend that the plaintiff was also partly at

fault. 

We believe that the instruction correctly states Arkansas law and

that the district court did not err in giving the instruction
-9-

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) Instructions regarding the Violation of Statutes, Ordinances or

Regulations

Appellants 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, the defendants attack the giving of Instruction No. 18 which

said that violation of a statute or ordinance (here the statute providing

a minimum speed limit of 45 and also a statute prohibiting impeding the

normal flow of traffic) could be evidence of negligence:

A violation of one or more of these statutes, although

not necessarily negligence, is evidence of negligence to

be considered by you along with all the other facts and

circumstances in the case.

(Jury Instruction No. 18).

Second, the defendants attack the giving of Instruction No. 19 which

said that the violation of a federal highway regulation prohibiting the

operation of a vehicle in a manner likely to cause an accident or breakdown

could be evidence of negligence:

A violation of this regulation, although not necessarily

negligence, is evidence of negligence to be considered by

you along with all the other facts and circumstances in

this case. 

(Jury Instruction No. 19).

Defendants argue that both of these instructions created confusion

for the jury and suggested that they were to apply
-10-

something other than the ordinary tort law standard of care. 

We disagree. Both of these instructions are modelled on Arkansas'

Model Jury Instruction 903, which is a commonly accepted formulation of

Arkansas law on evidence of negligence. See, e.g., Russell v. Watkins, 678

S.W.2d 762, 765 (Ark. 1984). We see nothing erroneous about giving either

of these instructions which properly said that the jury could consider

violations of statutes or regulations (if proved) as evidence of

negligence.

Motion for a New Trial or Remittitur Based on the Excessiveness of the

Verdict

The jury awarded Haynes $250,000 in compensatory damages. Bee-Line

and McCormick contend that Haynes only submitted evidence of a total of

$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 only for

clear abuse of discretion. Norton v. Caremark, Inc., 20 F.3d 330, 334, 340

(8th Cir. 1994). The defendants have not satisfied that standard here.

As Haynes notes, there was plenty of testimony about his continued pain and

suffering and his loss of use of his leg from the accident. Thus, the jury

was entitled to include in its award Haynes' future pain and suffering and

possible loss of future income in addition to the medical expenses and lost

wages which had already occurred.

We believe that the district court properly left the amount of

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 reasons 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.