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Payne v. Cornhusker Motor Lines8/9/2005
shorts. But within the last ten seconds or so, I laid on it continuously because he didn't appear like he heard or seen me." Plaintiff also testified that he put his hand on the brake valve because the truck did not stop. Furthermore, he testified that he did not put the train into emergency stop until he had hit the truck. From this evidence, a jury could find that, at any of these points, Plaintiff either knew or could have known there would be a collision. Accordingly, this evidence supports a finding that by using ordinary care, Plaintiff could have known there was a likelihood of collision in time to have stopped or slowed the train.
Plaintiff's next argument, that there was insufficient evidence to find that Plaintiff's not stopping or slowing the train proximately caused his injuries, seems to be the rationale adopted by the court in determining that there was insufficient evidence to support a finding of comparative fault. The trial court's order granting Plaintiff's motion for JNOV states, in full:
1. Arkansas law applies to this case (substantive law). (See Northland Ins. Co. v. Union Pacific R.R. Co., 830 S.W.2d 850 (S.Ct. Ark. 1992).
2. Evidence was insufficient to support any comparative fault finding, as distances estimated did not demonstrate train engineer's actions could have avoided collision in any event and train was not obligated to apply emergency brakes merely upon the approach of defendant's truck at grade crossing. Accordingly, judgment is amended to remove the 15% comparative fault findings of verdict, thereby further amending total judgment to the sum $3,500,000.00 (three million five hundred thousand dollars), in favor of Plaintiff Payne against Defendant Cornhusker. Costs assessed to Defendant subject to memo filed this date.
This conclusion is not supported by the record. There was evidence presented from which the jury could determine that Plaintiff's failure to stop or slow the train before impact contributed to his injuries. As we said above, there is evidence that Plaintiff knew or should have known the truck was not going to stop at some point before the collision. He testified that he laid on the horn continuously because he did not think the driver of the truck had heard or seen him. Brummett testified that the train started blowing its whistle continuously from "about a half or a quarter of a mile" from the crossing. Plaintiff testified that the train stopped between one-half to three-quarters of a mile after he engaged the emergency brake. Accordingly, there is substantial evidence that engaging the emergency brake could have prevented or lessened the collision, thereby preventing or lessening Plaintiff's injuries. As Plaintiff did not take any action to slow or stop the train before hitting the tractor-trailer, the evidence was sufficient for the jury to determine that Plaintiff breached the standard of care and that his actions proximately caused his injuries.
Accordingly, this court will not overturn the verdict because there was not a complete absence of probative facts to support it. As is evidenced by the hot dispute between the parties regarding the proper interpretation of the testimony given at trial, we find that reasonable minds can differ on the question of comparative fault and we will not disturb the jury's verdict. Furthermore, in close cases such as this one, the presumption favoring the reversal of a JNOV is a significant factor. Thus, we find that the trial court was correct in submitting the issue of comparative fault to the jury and granting the Plaintiff's Motion for JNOV was error. Point granted.
Discussion
Defendant's Motion for JNOV
Defendant claims
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