                                       ___________

                                       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
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
                                           1
were overruled by the district court.


     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




     1
     The Honorable Stephen M. Reasoner, Chief Judge, United States
District Court for the Eastern District of Arkansas.

                                        -2-
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 Bee-
Line 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.




                                            -3-
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




                                     -4-
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




                                        -5-
            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.




                                     -6-
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




                                    -7-
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




                                               -8-
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




                                     -9-
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.




                                        -10-
A true copy.


     Attest:


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




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