                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-CA-00044-SCT

ANA GLORIA MORENO

v.

TLSL, INC. AND RANDALL WALKER


DATE OF JUDGMENT:                         12/04/2014
TRIAL JUDGE:                              HON. PAUL S. FUNDERBURK
TRIAL COURT ATTORNEYS:                    CHRISTOPHER E. SANSPREE
                                          KENNETH INGRAM
                                          CHRIS H. DEATON
COURT FROM WHICH APPEALED:                ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   CHRISTOPHER EUGENE SANSPREE
ATTORNEY FOR APPELLEES:                   CHRIS H. DEATON
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              AFFIRMED - 03/17/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    This wrongful-death action was brought against TLSL, Inc. (“TLSL”) and Randall

Walker for the death of Arnoldo Moreno (“Arnoldo”). On November 7, 2011, at

approximately 5:00 a.m., Arnoldo, Juan Estrada, and Jose Garcia-Guillan were killed in a

motor-vehicle collision when Arnoldo’s pickup truck collided with an eighteen-wheeler

tractor-trailer, owned by TLSL and driven by Walker. Ana Moreno (“Moreno”), Arnoldo’s

widow, filed a wrongful-death action in the Circuit Court of Alcorn County. A jury trial was
held in December 2014. After Moreno rested, TLSL and Walker moved for a directed

verdict, which the trial court granted. After review, we affirm the trial court’s decision.

                                          FACTS

¶2.    On November 7, 2011, Arnoldo, Estrada, Garcia-Guillan and Ricardo Valdez were

traveling on U.S. Highway 72 west toward Memphis, Tennessee. Walker, a truck driver for

TLSL, was traveling to Oxford, Mississippi, in a seventy-five-foot-tractor trailer on County

Road 747, which intersects with U.S. Highway 72. This intersection provides a yield lane for

vehicles exiting County Road 747 and entering U.S. Highway 72. At approximately 5 a.m.,

while it was still dark, Arnoldo collided into Walker’s tractor-tailer. Arnoldo, Estrada, and

Garcia-Guillan all were killed.

¶3.    In March 2012, Moreno filed this wrongful-death action. A jury trial was held in

December 2014, at which the court heard testimony from four witnesses, Walker, Joyce

Popwell, Valdez, and Moreno.

¶4.    Walker testified that, on the morning of the accident, he conducted a routine

inspection of the tractor-trailer, and the trailer’s tail lights were working properly. When he

approached the intersection and entered the yield lane from County Road 747, he came to a

complete stop, allowing two vehicles to pass. As Walker drove onto U.S. Highway 72, he

noticed Arnoldo’s pickup-truck headlights appear over the hill, which, according to Walker,

was approximately three fourths of a mile from the intersection. Walker testified that he was

traveling between thirty and thirty-five miles per hour and was in fifth gear when the impact

occurred.



                                              2
¶5.    Joyce Popwell was driving behind Arnoldo and claimed to witness the accident.

According to Popwell, Walker failed to yield or stop but drove directly into Arnoldo’s pickup

truck. Popwell stated that, while she could see Walker’s headlights, she could not see

Walker’s side lights, brake lights, or tail lights.

¶6.    The Court also heard the deposition testimony from Valdez, one of the passengers in

Arnoldo’s pickup truck. Valdez testified that on November 7, he and the other passengers

departed from Decatur, Alabama, at approximately 3:30 a.m., traveling to Memphis,

Tennessee for work. After making a gas stop in Muscle Shoals, Jose and Juan fell asleep.

Within a few moments, Valdez also fell asleep. Valdez later was awakened by Arnoldo’s

scream and saw Arnoldo look back at him. Almost immediately, the accident occurred.

Valdez testified that he did not see the other vehicle involved in the accident nor did he see

whether the lights on the other vehicle were on or working properly.

¶7.    After Moreno presented her case, TLSL moved for directed verdict on the following

issues: improper inspection, damages for pain and suffering, medical bills, final expense and

burial, hedonic damages, current net loss value of wages, punitive damages, and liability.

Moreno stipulated that the directed verdict be granted on all the issues except the current net-

loss-value issue, the inspection issue, and the liability issue. The trial court granted directed

verdict on each issue. Moreno raised the following issue on appeal:

       Whether the trial court erred in granting TLSL’s motion for directed
       verdict as to the issue of negligence.




                                                3
¶8.    When reviewing a trial court’s grant or denial of a motion for directed verdict, this

Court reviews the decision de novo. Solanki v. Ervin, 21 So. 3d 552, 556 (Miss. 2009). “In

considering a motion for directed verdict, this Court must consider whether the ‘evidence in

opposition to the motion was of such quality and weight that reasonable and fair-minded

jurors in the exercise of impartial judgment could differ as to the verdict.’” McKinzie v.

Coon, 656 So. 2d 134, 137 (Miss. 1995) (citing Collins v. Ringwald, 502 So. 2d 677, 679

(Miss. 1987)). “If the evidence is sufficient to support a verdict in favor of the non-moving

party, the trial court properly denied the motion.” Henson v. Roberts, 679 So. 2d 1041, 1044-

1045 (Miss. 1996). “A directed verdict pursuant to M.R.C.P. 50(a) is not an appropriate

means for the disposition of a case so long as questions of fact are raised in the proof at

trial.” Ervin, 21 So. 3d at 556-557.

¶9.    Moreno contends that there was sufficient evidence to support a verdict in her favor,

but that the trial court erroneously directed the verdict in favor of TLSL based on its own

determination of the witnesses’ credibility, instead of submitting the issue to the jury. The

trial court found that Moreno had failed to make a prima facie case on whether Walker

negligently operated the tractor-trailer and whether he improperly inspected it. Moreno

contends that Walker failed to yield the right of way and that the tractor-trailer’s lights were

not on, resulting in Arnoldo’s death. Based on the evidence presented, Moreno asserts that

a jury could have found Walker negligent. Viewing the evidence in the light most favorable

to Moreno, this Court affirms the trial court.

              A.      Whether Walker failed to yield the right of way.



                                                 4
¶10.      Generally, when a dispute of evidence is presented at trial, the issue must be presented

to the jury. When conflicting evidence was presented in Bush Construction Co. v. Walters,

250 Miss. 384, 164 So. 2d 900 (1964), this Court stated that “[i]t was a jury question whether

appellant’s driver . . . was guilty of negligence proximately contributing to the collision . .

. .” Id. at 390. In Bush, a family of three was killed when the family’s vehicle, driven by

Miles Walters (plaintiff), entered an intersection and collided with a gravel truck, owned by

Bush Construction and driven by Larry Musgrove (defendants). Id. at 388-89. There was

conflicting evidence as to whether Musgrove was speeding and failed to keep a proper

lookout when he entered the intersection, and whether Walters failed to stop at the stop sign

and created a hazard by driving into the intersection when Musgrove was speeding. Id. at

389. Although the evidence showed that the plaintiff was negligent, the Court found that the

defendants were not entitled to a directed verdict because there was evidence that Musgrove

was negligent as well. Id.

¶11.      Similarly, in Mills v. Nichols, 467 So. 2d 924 (Miss. 1985), the Court found that

where there was conflicting evidence as to “whether Mills was so close to the intersection

as to constitute an immediate hazard of collision” this was a question for the jury. This Court

stated:

          The evidence at trial concerning the manner in which the accident occurred
          was sharply conflicting. Mills contended that Cooksley must have run the stop
          sign and pulled in front of him at a time when Mills had the right of way at the
          intersection. Nichols argued that Mills was under the influence of alcohol,
          driving without headlights, speeding and failing to keep a proper lookout. The
          physical evidence, skidmarks and damages to the truck, support Mills’
          contention that the back of the trailer was still in the lefthand lane at the time
          of the accident. Beyond that, it becomes a swearing contest as to which vehicle

                                                  5
       had preempted the intersection and which vehicle had the duty to yield. Mills
       said that Cooksley pulled out at the last minute; Cooksley said that he looked
       down the road and saw nothing coming. This is a classic jury question of fact.

Id. at 931.

¶12.   However, “evidence which is inherently unbelievable or incredible is in effect no

evidence and is not sufficient to sustain a verdict.” Teche Lines, Inc. v. Bounds, 182 Miss.

638, 179 So. 747 (1938). In the present case, there was conflicting testimony between Walker

and Popwell as to whether the accident was a rear-end collision or a side collision. Walker

testified that when he entered the yield lane, he came to a complete stop. And when he

proceeded onto U.S. Highway 72, he saw Arnoldo’s headlights in the distance. According

to Walker, the impact occurred beyond the intersection point and when Walker had reached

about thirty miles per hour and was in fifth gear.

¶13.   Popwell, however, testified that Walker never stopped nor yielded before he entered

U.S. Highway 72, but “just went on out in the middle” of the road and “he just ran into this

pickup truck.” Popwell sketched a picture of the accident she described. The Mississippi

Highway Patrol, however, concluded that Arnoldo had caused the collision by failing to yield

the right of way, following too closely and speeding.

¶14.   We note that Moreno acknowledges that Popwell’s testimony was inaccurate

concerning the cause of the collision. Moreno states, “[t]he claims in the Complaint arise out

of an automobile accident where a pickup truck which Plaintiff’s decedent was driving struck

the rear of Defendant’s tractor trailer truck. . . .” Further, Moreno admitted that Popwell’s

drawing was not a true representation of the collision, stating, “Ms. Popwell’s drawing was



                                              6
not accurate in that she had the tractor trailer truck coming into the roadway from an angle

when the accident occurred.” Moreno contends that Popwell’s testimony was critical as she

was the only eye witness, but Moreno essentially discredits Popwell’s testimony by admitting

that the cause of the accident was a rear-end collision and not a side collision, as Popwell

testified to and indicated on her drawing.

¶15.   Further, Valdez testified that Arnoldo could not have avoided the collision, despite

admitting that prior to the accident, he was asleep and never saw what caused the impact.

Moreno also stated that:

       Defendant’s counsel indicated Plaintiff’s decedent was traveling 86 or 87
       miles per hour. Defendant Walker testified Plaintiff’s decedent was three-
       fourths of a mile behind him when he pulled into the roadway and that he was
       traveling about 30-35 miles per hour at the time of the accident. Using simple
       math, even if the tractor trailer truck was at a complete standstill the whole
       time (which it was not), Plaintiff’s decedent would have had about 30 seconds
       to make an avoidance maneuver if he had seen the tail lights or running lights.
       Since the tractor trailer truck was moving forward during this time period,
       Plaintiff’s decedent would have had even more time to spot the large vehicle
       and change lanes. There is no evidence in the record Plaintiff’s decedent was
       impaired in any way at the time of the wreck.

¶16.   Moreno contends that this evidence was sufficient for a jury to find that Walker

negligently failed to yield the right of way and negligently operated the tractor-trailer.

Although Popwell’s and Walker’s testimony conflicted, the trial court did not erroneously

grant TLSL’s directed verdict because Popwell’s testimony was contradicted by the

Mississippi Highway Patrol report and Moreno acknowledged that Popwell’s testimony was

inaccurate and that her drawing did not properly depict the accident.




                                             7
¶17.     Further, Walker had the right of way to enter U.S. Highway 72. Mississippi Code

Section 63-3-805 states in part:

         The driver of a vehicle shall stop as required by this chapter at the entrance to
         a through highway and shall yield the right-of-way to other vehicles which
         have entered the intersection from said through highway or which are
         approaching so closely on said through highway as to constitute an immediate
         hazard. However, said driver having so yielded may proceed and the drivers
         of all other vehicles approaching the intersection on said through highway
         shall yield the right-of-way to the vehicle so proceeding into or across the
         through highway.

Miss. Code Ann. § 63-3-805 (Rev. 2013)

¶18.     This statute “does not require the driver of a vehicle who has already entered onto an

intersection with a through highway to yield the right-of-way to an approaching vehicle

which has neither entered the intersection nor approached so closely thereto from said

through highway as to constitute an immediate hazard. This is likewise true as to a vehicle

about to enter or cross a through highway from a private road or driveway.” Jones v. Carter,

192 Miss. 603, 7 So. 2d 519, 520 (1942).

¶19.     Although Walker saw Arnoldo’s pickup truck in the distance when he proceeded onto

U.S. Highway 72, Walker had the right of way to proceed onto the highway unless the pickup

truck was so close as to constitute an immediate hazard. Walker testified that the truck was

approximately three-fourths of a mile away. See Meo v. Miller, 227 Miss. 11, 17-18, 85 So.

2d 568, 570-71 (1956) (plaintiff’s vehicle was an immediate hazard where the defendant

pulled into the intersection when plaintiff’s vehicle was only sixty-to-one-hundred feet

away).




                                                8
¶20.   Based on the circumstances surrounding the case, the trial court properly granted

TLSL’s motion for directed verdict.

       B.      Whether the tail lights on the tractor-trailer were working.

¶21.   When ruling on TLSL’s motion for directed verdict on the issue of improper

inspection, the trial court stated:

       [O]n the issue of improper inspection, the -- of course, the plaintiff has the
       burden of proof of making out a prima facie case on that issue. It is undisputed
       that the . . . Mr. Randall Walker, the driver of this vehicle, made an inspection
       on the morning of the accident before leaving the terminal or his home, or
       wherever he left from. I’m not sure exactly what he said about where he was.
       And during that time his testimony was that he had -- I don’t know -- ten
       minutes to observe these lights and that they were on and working.

       So. . . also, Defendant’s Exhibit 7, which was pre-marked as being received,
       clearly show that there are lights on the back of the trailer that are - - that are
       on and working.

       The only proof before the Court is -- on this issue is from the testimony of Mr.
       Walker, corroborated by this photo, that the lights were on when he left, and
       the Plaintiffs’ witnesses on this issue, Mr. Valdez and Ms. Popwell, were not
       in a position, or did not, or could not see the tail lights. Mr. Valdez testified
       that he never saw the other vehicle. Well, naturally -- I think he later said he
       couldn’t see the lights. Naturally, if he couldn’t see the other vehicle, he
       certainly could not see the lights at all, which he -- and Ms. Popwell’s
       testimony is. . . is that she was not in a position to see the tail lights. I believe
       her testimony that the running lights, or whatever they are called on the trailer,
       if it even had any, were not on, but from her testimony she was not in a
       position to even see whether the tail lights were on or not.

       So the plaintiff has failed to make out a prima facie case on the only issue of
       negligence left for the jury’s decision, and therefore, the Court is directing a
       verdict in this case on liability.

¶22.   This Court agrees with the trial court’s ruling because Moreno failed to provide any

evidence demonstrating that the tail lights were not on prior to the collision. Moreno relies



                                                9
solely on Popwell’s and Valdez’s testimony, even though both witnesses admitted that they

neither saw nor were in a position to see Walker’s tail lights. Popwell testified that she saw

only Walker’s headlights but could not see the side lights, brake lights, or tail lights. She also

stated that if the tail lights were on, she would have noticed them. Valdez testified that he did

not see Walker’s tail lights, nor did he see Walker’s truck prior to the collision. However,

according to Walker, the tail lights were working when he conducted his inspection that

morning. Further, as the trial court noted, Walker’s testimony was corroborated by a

photograph that was taken after the collision, which showed the trailer lights working.

¶23.   In Vines v. Windham, 606 So. 2d 128 (Miss. 1992), this Court found that the trial

court erroneously submitted the issue of negligence to the jury. As Windham waited at a stop

sign, intending to turn left, another driver at a traffic light motioned for Windham to cross

the intersection. Id. at 129. Windham proceeded, and his vehicle collided with Vines. Id.

Windham and Vines were the only two witnesses who testified about the negligence issue.

Id. at 131. Vines testified that Windham pulled out in front of her, and Windham testified

that he did not see Vines’s vehicle until after the impact. Id. However, this Court found that

Windham’s testimony did not establish that Vines was driving negligently. Id. at 132.

Therefore, the trial court erred by submitting this issue to the jury. Id.

¶24.   Further, in McKinzie v. Coon, 656 So. 2d 134 (Miss. 1995), this Court reversed the

decision of the trial court and rendered a verdict on the issue of liability in favor of

McKenzie where the jury verdict favored Coon, although no evidence was presented showing

that the McKinzie was negligent. As Coon drove into the intersection, without noticing



                                               10
McKinzie’s approaching vehicle, she was struck. Id. at 135. Two witnesses testified that

Coon had pulled out in front of McKinzie, although McKinzie’s vehicle was in full view

from where Coon had stopped. Id. at 136. After a review of the evidence, this Court stated

that, “Coon presented nothing contrary to the evidence of McKinzie. . . . Coon did not testify

that McKinzie was speeding or was otherwise negligent. He merely stated he looked and

never saw her. . . .” Id. at 141. Although this Court reversed the trial-court judgment and

rendered a verdict on liability, it remanded the case for a trial on damages.

¶25.   Similarly, Moreno has not presented any evidence to establish or contradict whether

the tail lights were on where neither of Moreno’s witnesses was in a position actually to see

the lights.

                                     CONCLUSION

¶26.   Because Moreno has failed to present any contrary evidence showing that the tail

lights were not on prior to the collision, the trial court did not err in granting a directed

verdict in favor of TLSL. Therefore, we affirm the judgment of the Circuit Court of Alcorn

County.

¶27.   AFFIRMED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
KING, COLEMAN AND MAXWELL, JJ., CONCUR.




                                             11
