Maridell Powell, Independent of the Estate of Cloyce A. Powell, Deceased, Etc. v. William (Bill) McIntire E.S.F., (Bud) Brainard

Fifth Circuit

Maridell Powell, Independent of the Estate of Cloyce A. Powell, Deceased, Etc. v. William (Bill) McIntire E.S.F., (Bud) Brainard

415 F.2d 333, 1969 U.S. App. LEXIS 10934

CourtCourt of Appeals for the Fifth Circuit

DecidedSeptember 2, 1969

Docket27675

StatusPublished

Cited by5 cases

This text of 415 F.2d 333 (Maridell Powell, Independent of the Estate of Cloyce A. Powell, Deceased, Etc. v. William (Bill) McIntire E.S.F., (Bud) Brainard) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maridell Powell, Independent of the Estate of Cloyce A. Powell, Deceased, Etc. v. William (Bill) McIntire E.S.F., (Bud) Brainard, 415 F.2d 333, 1969 U.S. App. LEXIS 10934 (5th Cir. 1969).

Pincite

Opinion

PER CURIAM:

Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on Summary Calendar and to notify the parties in writing. See *334 Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.

This suit arose from a collision on a rainslick, two-lane Texas highway. The car of decedent, Cloyce A. Powell, traveling east, collided with the pickup truck of defendants, traveling west. Judgment was entered for the defendants based on answers of the jury to numerous special interrogatories. Rule 49, Fed.R.Civ.P. The court overruled plaintiff’s motion for new trial. There was no motion for a directed verdict and no motion for judgment n. o. v. What the appellant invokes, and all that she invokes, is the narrowly circumscribed review of the denial of a motion for new trial on the ground that the verdict is against the great weight of the evidence. E. g., Pennsylvania Thresherman & Farmers’ Mut. Cas. Ins. Co. v. Crapet, 199 F.2d 850 (5th Cir. 1952); 6A Moore, Federal Practice § 59.08 [5], p. 3820.

Appellant’s arguments are directed principally to two jury findings: that decedent was operating his car at an excessive speed which proximately contributed to the accident, and that the defendant driver did not discover decedent’s position of peril at such time and at such distance that he could have avoided the occurrence using the means at his command consistent with his own safety. We have examined the testimony. It shows beyond question that the trial judge committed no reversible error in denying the motion for new trial. Indeed he would not have been justified in granting it. The evidence on both of the questioned issues of fact was in conflict, the jury made its findings of fact, and there the matter must end.

We may not, as urged by appellant, reject the testimony that she considers not credible and accept only that which is. favorable to her.

Because the jury’s finding required a judgment in favor of defendants the specification of error concerning the findings on damages become abstract.

Affirmed.

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PER CURIAM:

Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on Summary Calendar and to notify the parties in writing. See *334 Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.

This suit arose from a collision on a rainslick, two-lane Texas highway. The car of decedent, Cloyce A. Powell, traveling east, collided with the pickup truck of defendants, traveling west. Judgment was entered for the defendants based on answers of the jury to numerous special interrogatories. Rule 49, Fed.R.Civ.P. The court overruled plaintiff’s motion for new trial. There was no motion for a directed verdict and no motion for judgment n. o. v. What the appellant invokes, and all that she invokes, is the narrowly circumscribed review of the denial of a motion for new trial on the ground that the verdict is against the great weight of the evidence. E. g., Pennsylvania Thresherman & Farmers’ Mut. Cas. Ins. Co. v. Crapet, 199 F.2d 850 (5th Cir. 1952); 6A Moore, Federal Practice § 59.08 [5], p. 3820.

Appellant’s arguments are directed principally to two jury findings: that decedent was operating his car at an excessive speed which proximately contributed to the accident, and that the defendant driver did not discover decedent’s position of peril at such time and at such distance that he could have avoided the occurrence using the means at his command consistent with his own safety. We have examined the testimony. It shows beyond question that the trial judge committed no reversible error in denying the motion for new trial. Indeed he would not have been justified in granting it. The evidence on both of the questioned issues of fact was in conflict, the jury made its findings of fact, and there the matter must end.

We may not, as urged by appellant, reject the testimony that she considers not credible and accept only that which is. favorable to her.

Because the jury’s finding required a judgment in favor of defendants the specification of error concerning the findings on damages become abstract.

Affirmed.

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415 F.2d 333, 1969 U.S. App. LEXIS 10934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maridell-powell-independent-of-the-estate-of-cloyce-a-powell-deceased-ca5-1969.

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