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Phan v. Denley11/22/2005
ly, and individually. It also found from the preponderance of the evidence that the negligence of Kim Phan was the sole proximate cause of her injuries. Further, the jury did not present Phan with any recovery. The trial court also denied Phan's motion for judgment notwithstanding the verdict or in the alternative for a new trial. The trial court denied the motion for untimeliness and on the merits.
ANALYSIS
I.
. Phan's first assignment of error concerns the trial judge's denial of the post trial motions. Motions for a verdict notwithstanding the verdict require the court to "consider the evidence in the light most favorable to the non-moving party, and if the facts are so overwhelmingly in favor of the moving party that a reasonable juror could not have agreed with the verdict at hand, we must reverse." McKenzie v. Supervalu, Inc., 883 So.2d 1188, 1192( ) (MisS.Ct. App. 2004), citing Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss. 1993). "In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal." Wal-Mart Stores v. Frierson, 818 So.2d 1135, 1143 ( ) (Miss. 2002).
. The jury had the opportunity to hear both drivers and both experts and weight their testimony accordingly. This testimony gave the jury enough evidence to render a verdict for Denley. Taking the verdict of the jury in the light most favorable to the non-moving party shows no indication of error on behalf of the trial court.
II.
. Phan next contends that the jury entered a verdict against the weight of the evidence. Phan bases this on Mississippi Code Annotated ยง 63-3-805, Vehicle Entering Through Highway, which states, "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. . . ." Phan argues that Denley had the duty to look for approaching vehicles, could have seen her, and thus should have yielded. She based this on her expert, Mr. River's, opinion that Denley could see someone coming from the intersection and from Patrolman Halderman's testimony that someone could see for a quarter-mile from the intersection. She also argues that if Denley stopped and looked both ways as he testified then he had the opportunity to see Phan's vehicle coming.
. Phan cites to Dogan v. Hardy, 587 F. Supp. 967, 970 (N.D. Miss. 1984) to say, "Further, a motorist who claims to have looked but failed to see vehicles in the intersection or approaching so closely as to constitute an immediate hazard is guilty of negligence as a matter of law under the substantive law of Mississippi." Similarly, the Dogan case involved a tractor trailer and a motor vehicle colliding at an intersection. However, the evidence overwhelmingly showed that the collision occurred just as the tractor trailer entered the intersection so that the plaintiff did not have time to react, which seems to be contrary to what the jury in the present case found.
. Denley argues that at best this presented a typical fact question that a jury must decide. Accordingly, the jury had to decide the proximate cause of this accident. Denley cites "Mills v. Nichols, 467 So.2d 924, 931 (Miss. 1985), which also involved a motor vehicle accident between a tractor trailer pulli
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