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Phan v. Denley11/22/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 11/22/2005
EN BANC.
. Kim Phan received injuries after a November 18, 2002 car accident with the defendants Joshua Denley's and Pinkard & Son Trucking's tractor trailer in Attala County. On March 24, 2004, an Attala County jury rendered a verdict for the defendants. Phan appeals this verdict challenging (1) the trial court's denial of post trial motions, (2) that the verdict is against the weight of the evidence, and (3) the denial of two jury instructions .
STATEMENT OF FACTS
. Kim Phan testified that she left Dallas, Texas for Columbus, Mississippi sometime between five and six on November 17, 2002. She also noted that she stopped often to ask for directions, eat and rest when necessary. In the early morning of November 12, Phan drove her 1997 Plymouth Grand Voyager van on Highway 12 near Ethel.
. Joshua Denley testified that on the same morning he woke up at 3:30 a.m. and went to Pinkard & Son Trucking in Ethel in order to transport a load of foam insulation to Pearlington, Mississippi. He also testified that he performed a full 103 point inspection of his 1997 International tractor trailer that complied with the regulations of the U.S. Department of Transportation. This inspection showed that all of his lights and reflectors worked. He left Pinkard & Sons on Business Highway 12 and traveled to where it connects to Highway 12.
. Where Business 12 and Highway 12 intersect, a motorist has two options of which entrance to use to get onto Highway 12. Testimony described one entrance as perpendicular and the other as more of a merge- type entrance. Denley testified that he chose the merge- type and stopped at the stop sign before pulling out into Highway 12.
. As Denley made his turn, the accident occurred when Phan's van hit the rear tandem tires of Denley's trailer. Denley testified that he could not see any vehicles coming from either direction when he began to make his turn. After starting to turn he noticed headlights coming towards him and testified that the car made no attempt to slow down. According to Phan, at the time she was driving 50 miles per hour in the 55 miles per hour zone because she worried that deer might be in the road. She further testified that the wreck happened too fast and she did not have time to stop her vehicle. Mississippi Highway Patrolman Billy Halderman responded to the accident and testified that the van hit the rear tires of the trailer. Halderman also testified that a truck could legally turn onto the highway from either entrance but that the perpendicular entrance had more visibility of the highway.
. Each side presented accident reconstruction experts to testify. Denley and Pinkard & Sons presented James Hannah who calculated a perception and reaction time. According to Hannah's opinion, Phan had the opportunity to stop her vehicle in time to avoid the accident and Phan had the ability to stop even if she were driving 70 miles an hour. He also testified that the evidence showed that Phan did not brake her vehicle prior to the accident.
. George Rivers offered his expert opinion on behalf of Phan and argued that Denley could not make the turn from a full stop without cheating into the other lane. He also felt that Denley had the ability to avoid the accident since he should have seen Phan before making his turn. He also expressed his opinion that the visibility of the cut- through entrance presented a more prudent alternative to the merging entrance.
. The Attala County jury found for Denley and Pinkard & Sons Trucking. jointly several
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