IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-10546

Summary Calendar

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LEONARD KIRKHAM, JR; ET AL,

Plaintiffs,

LEONARD KIRKHAM, JR.,

Plaintiff-Appellant,

v.

WESTWAY EXPRESS INC; JEWETT SCOTT TRUCK LINES INC.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

Docket No. 3:98-CV-204-BF(R)

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January 14, 2000

Before KING, Chief Judge, and WIENER and BARKSDALE, Circuit

Judges.

PER CURIAM:*

Plaintiff-Appellant Leonard Kirkham, Jr. (“Kirkham”) appeals

from the district court’s entry of judgment in favor of

Defendants-Appellees Westway Express, Inc. (“Westway”) and Jewett

Scott Truck Lines, Inc. (“Jewett Scott”) and its subsequent

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 *Pursuant to 5TH CIR. 4. 47.5.,the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. 4. 47.5.4.
 

1 The instruction read: “‘Unavoidable Accident’ is an event

not proximately caused by the negligence of any party to it.”

2

denial of his motion for a new trial. For the following reasons,

we AFFIRM.

Kirkham filed this diversity action against Westway and

Jewett Scott claiming that he was injured in a semi-truck

collision which occurred during a sudden winter snow-storm. 

Kirkham was driving a semi-truck for his employer when a truck

owned by Westway rear-ended a truck owned by Jewett Scott, which,

in turn, rear ended Kirkham. A three-day jury trial was held in

January, 1999.

Prior to the court’s charging of the jury, Kirkham objected

to instructing the jury on the doctrine of “unavoidable

accident.”1 The district court overruled Kirkham’s objection and

instructed the jury on unavoidable accident. The jury returned a

verdict in favor of Westway and Jewett Scott, finding that

neither defendant was negligent in causing the accident. The

jury returned a verdict in favor of Westway and Jewett Scott,

finding that neither defendant was negligent in causing the

accident. The jury returned a verdict in favor of Westway and

Jewett Scott, finding that neither defendant was negligent in

causing the accident. After the court entered judgment, Kirkham

moved for a new trial, re-asserting his objection to the

unavoidable accident instruction. The district court denied the

motion and Kirkham timely appeals. On appeal, Kirkham only

argues that the district court erred in instructing the jury on
3

unavoidable accident.

A trial court is “afforded great latitude in the framing and

structure of the [jury] instructions.” Barton’s Disposal

Service, Inc. v. Tiger Corp., 886 F.2d 1430, 1434 (5th Cir.

1989). Therefore, we review a district court’s instructions to

the jury for an abuse of discretion. See id. A party

challenging a jury instruction must show that the instruction “as

a whole creates ‘substantial and ineradicable doubt whether the

jury has been properly guided in its deliberations.’” Fed.

Deposit Ins. Corp. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994)

(citing Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993)).

The district court did not abuse its discretion by

instructing the jury on unavoidable accident. While it is true

that the Texas Supreme Court has expressed serious reservations

regarding unavoidable accident instructions, See Reinhart v.

Young, 906 S.W.2d 471, 473 (Tex. 1995), the court has noted that

such instruction are proper in cases requiring inquiry into the

causal effect of “some physical condition or circumstance such as

fog, snow, sleet, [or] wet or slick pavement.” Id.; see also

Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802 (Tex. 1992).

Although the parties disagree on the exact details of the

accident, a review of the record indicates that the accident

occurred during a winter storm and under less than ideal driving

conditions. This is precisely the type of case where the Texas

courts have found an unavoidable accident instruction

appropriate. Even if hazardous driving conditions were
4

reasonably foreseeable, the jury was still free to conclude that

the defendants’ drivers “acted as []reasonably prudent persons

under the circumstances, [so the] foreseeability of the road

conditions did not negate the propriety of the unavoidable

accident instruction.” Friday v Spears, 975 S.W.2d 699, 702

(Tex. App. 1998, no writ).

Our review of the record indicates that the district court

did not abuse its discretion in instructing the jury on

unavoidable accident. Therefore, we AFFIRM.