BRIEF OF APPELLEES, EDDIE MICHAEL, JR. and BELLSOUTH TELECOMMUNICATIONS, LLC

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1 E-Filed Document Sep :11: CA Pages: 39 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA TERRY E. HARRIS APPELLANT vs. EDDIE MICHAEL, JR., AND BELLSOUTH TELECOMMUNICATIONS, LLC DBA AT&T MISSISSSIPPI APPELLEES APPEAL FROM THE CIRCUIT COURT OF LAMAR COUNTY, MISSISSIPPI BRIEF OF APPELLEES, EDDIE MICHAEL, JR. and BELLSOUTH TELECOMMUNICATIONS, LLC ORAL ARGUMENT REQUESTED ROBERT D. GHOLSON, MS BAR #4811 KATHERINE B. SUMRALL, MS BAR # GHOLSON BURSON ENTREKIN & ORR, PA 535 North Fifth Avenue (39440) Post Office Box 1289 Laurel, Mississippi Telephone: Facsimile: Attorneys for Bellsouth Telecommunications, LLC

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of the Mississippi Court of Appeals may evaluate possible disqualification or recusal: 1. Terry Harris, Appellant; 2. Eddie Michael, Jr., Appellee; 4. BellSouth Telecommunications, LLC, Appellee; 5. Chase Ford Morgan and Len Melvin, counsel for Appellant, Terry Harris; 6. Robert D. Gholson and Katherine B. Sumrall, counsel for Appellees, Eddie Michael, Jr., and BellSouth Telecommunications, LLC; and 7. Honorable Judge Anthony A. Mozingo. SO CERTIFIED, this the 10 th of September, s/robert D. Gholson Robert D. Gholson ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES ii iii iv INTRODUCTION 1 STATEMENT OF THE ISSUE 3 STATEMENT OF THE CASE 4 SUMMARY OF ARGUMENT 7 STANDARD OF REVIEW 7 ARGUMENT AND LAW 8 I. THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEES MOTION FOR DIRECTED VERDICT BECAUSE THE APPELLANT FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF LIABILITY. 8 A. Terry Harris and Robert Madden s Testimony 8 B. Eddie Michael, Jr. s Testimony 12 C. No Juror could have reasonably inferred that the Appellees were liable.. 14 II. THE TESTIMONY AND EVIDENCE PRESENTED AT TRIAL DEMONSTRATES THAT THE APPELLEES VEHICLE LEGALLY PREEMPTED THE INTERSECTION SUCH THAT NO REASONABLE JUROR COULD HAVE FOUND IN APPELLANT S FAVOR 21 III. PERIPHERAL ISSUES RAISED BY THE APPELLANT 23 A. Credibility of Eddie Michael, Jr. 23 B. Credibility of Terry Harris 26 C. Motion in Limine 31 CONCLUSION 34 iii

4 TABLE OF AUTHORITIES STATE CASES Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1003 (Miss. 1992) 8, 14, 23 Blizzard v. Fitzsimmons, 193 Miss. 484, (Miss. 1942) 15 Delaughter v. Lawrence Co. Hosp. 601 So.2d 818, 821 (Miss. 1992_ 31 Fox v. Smith, 594 So. 2d 596, 603 (Miss. 1992) 8 Hartel v. Pruett, 998 So.2d 979, 984 (Miss. 2008) 33 Miss. Dep t of Mental Health v. Hall, 936 So. 2d 917, 923 (Miss. 2006) 9 Mississippi Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, (Miss. 1998) 15 Redhead v. Entergy Miss., Inc., 828 So. 2d 801, (Miss. Ct. App. 2001) 10, 22 Richardson v. Norfolk Southern Ry., 923 So.2d 1002 (Miss. 2006) 31 Rudd v. Montgomery Elevator Co., 618 So. 2d 68, (Miss. 1993) 16, 17 Solanki v. Ervin, 21 So. 3d 552, 556 (Miss. 2009) 7 State Farm Auto Ins. Cos. v. Davis, 887 So. 2d 192 (Miss. App. 2004) 17, 18, 19 Vu v. Clayton, 765 So. 2d 1253, 1254 (Miss. 2000)(quoting Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992)) 8 White v. Thomason, 310 So. 2d 914, (Miss. 1975)(citing Williams v. Weeks, 268 So. 2d 340 (Miss. 1972)) 8 STATUTES Miss. Code Ann , 3, 4 Miss. Code Ann , 3, 4, 21, 22 RULES Miss. R. Ev , 9, 22 TREATISES AND SECONDARY AUTHORITY 57A Am. Jur. 2d Negligence, , 15 iv

5 INTRODUCTION Imagine a car wreck case where the plaintiff offers absolutely no proof that the defendant did anything wrong, beyond his own self-serving, subjective speculation. And, imagine that in that same case, the undisputed physical facts demonstrate conclusively that defendant was not to blame for the accident. Would anyone be surprised that a directed verdict was granted? Yet, Terry Harris is before this Court insisting that Judge Mozingo erred by ruling that no reasonable jury could find for him. Because Mr. Harris liability theory is inconsistent with the uncontested facts, and more importantly because he offered no proof whatsoever that the defendants were negligent, a directed verdict was not only proper, but mandated under the law. The reason this Court should affirm the grant of directed verdict by the trial court is simple. In order to prevail on a negligence claim, the plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate cause, and damages. Duty and breach of duty are essential elements of negligence and should be demonstrated first. 1 Here, Terry Harris failed in his burden to prove a breach of duty. Neither Mr. Harris, the passenger, nor his witness, Mr. Madden the driver of the large dump truck in which Mr. Harris was riding - testified that: (1) they saw BellSouth Telecommunications, LLC s, ( BST, ) truck before impact; (2) they saw Eddie Michael, Jr. -driver of the BST truck - run a stop sign; or (3) that Mr. Michael was the cause of the collision. 2 Stated differently, the only liability proof offered by Mr. Harris came from the testimony of Mr. Harris and Mr. Madden both of whom testified that they did not see the BST truck until the moment of impact, rendering it impossible for them to say that Mr. Michael breached any duty owed to the traveling public. This case 1 Patterson v. T. L. Wallace Constr., Inc., 133 So. 3d 325, 331 (Miss. 2013) (internal citations omitted). 2 T. vol. 3, p. 344, l. 15-p. 345, l. 7. 1

6 should not have proceeded past summary judgment to trial, 3 and despite the trial court s ruling in favor of Mr. Harris on two (2) admittedly questionable evidentiary matters, 4 he still failed to meet his burden of proof. Though Mr. Harris understandably tries to distract this Court from the glaring insufficiencies in his proof, the lack of evidence of liability is fatal to his case. Even so, the undisputed physical facts demonstrate that the BST driver is not to blame for the collision. It is abundantly clear, through both trial testimony and the points of impact and damage to the vehicles, that the BST truck legally preempted the intersection well before Mr. Madden pulled away from the stop sign. 5 It is undisputed by Mr. Harris witnesses that the BST truck was already through the intersection at issue at the time of impact. 6 It is undisputed, visible in photographs in evidence at trial, and corroborated by testimony of each witness, that the impact to the BST truck occurred to the right, rear axle of the trailer being pulled by the BST truck. 7 It is further undisputed by either of Mr. Harris witnesses, visible in photographs in evidence at trial, and corroborated by testimony of each witness, that the impact to the Lamar County work truck occurred to the left, front bumper. 8 Accordingly, no juror could reasonably infer that the 3 Id. at p. 355, ll When giving his findings on the Motion for Directed Verdict, the trial court judge stated the following regarding his reasoning: When summary judgment arguments were made in the past, several months ago, this Court has a philosophy that summary judgment are not the rule, they are the exception. And I wanted to give the Plaintiff every opportunity to develop his case and have his day in court. 4 Id. at p. 355, l , l. 8. Trial Judge Mozingo continued to state his reasoning for granting directed verdict, explaining: The fact that evidentiary rulings, which could have easily gone either way, were granted to the Plaintiff. And I think, a specific example before trial. The Supreme Court very well may have a lot to say about this Court s ruling on whether Mr. Madden and Mr. Harris were able to give their opinion as to what caused the accident. That s nevertheless, I am just trying to show you that not only did I allow the survival of summary judgment, but ruled that they could tell what they thought happened that caused the accident And another ruling that the Court gave the Plaintiffs that might have gone the other direction, the defendants, was allowing mention of this defendant s work history. I felt like all of those things were this Court s effort for Eddie to have his day in Court. 5 Miss. Code Ann and Miss. Code Ann Trial Exhibit, D-6; see also, T. vol. 2, p. 272, ll See, D-4, GBEO-00816, 00818, 00822, , 00841, 00843, 00845; See also, T. vol. 2, p. 245, ll T. vol. 3, p. 311, ll

7 accident at issue was somehow caused by the BST truck that is, the truck pulling the large trailer that had almost completely cleared the intersection at the time of impact. Despite Mr. Harris attempt at distraction from the only relevant consideration for this Court, no reasonable inference need be made to determine, based on the evidence, what occurred and who caused the subject accident. Both the trial testimony and the photographic evidence point, without inference or speculation, to the inescapable conclusion that the Lamar County truck in which Mr. Harris was a passenger struck the rear of the trailer being pulled by the BST truck that had undisputedly preempted and passed through the intersection at issue. 9 It is further inescapable that, even taking every claim by Mr. Harris as true, he failed to establish a basis for liability of BST and Mr. Michael. Neither Mr. Harris nor Mr. Madden saw the BST truck before impact. 10 Therefore, neither witness could properly state (nor did they state at trial) that Mr. Michael did anything to cause the subject collision. 11 Even if this Court accepts as true Mr. Harris rank speculation that the BST truck ran the stop sign at the subject intersection, BST and Mr. Michael still would not be liable because the BST truck legally preempted the intersection in accordance with Miss. Code Ann and These facts are as clear now as they were both at summary judgment and in the Lamar County Courtroom at the close of Mr. Harris case-in-chief; as such, directed verdict was unquestionably warranted. This Court should affirm the trial court s actions. STATEMENT OF THE ISSUE The trial court did not err in granting Mr. Michael and BST s Motion for Directed Verdict because Mr. Harris failed to meet his burden of proof regarding the alleged liability of 9 See Trial Exhibits, D-4 and D-6. See also, T. vol. 2, p. 283, ll And see, Id. at p. 249, ll T. vol. 2, p. 269, ll. 7-14; Id. at p. 282 l p. 283, l Miss. R. Ev Miss. Code Ann and Miss. Code Ann

8 the Appellees. The evidence presented at trial established that the BST vehicle preempted the subject intersection in accordance with Miss. Code Ann and such that, even if it could be proven that the Mr. Michael negligently entered the intersection, the vehicle in which Mr. Harris was a passenger was still at fault for failing to yield. Therefore, even taking all testimony as true and giving the benefit of all reasonable inferences, Mr. Harris failed to present sufficient evidence for a jury to find in his favor, and the motion for directed verdict was properly granted. STATEMENT OF THE CASE This is an appeal brought by Terry Harris from an order granting the Motion for Directed Verdict made by BST and Eddie Michael, Jr., in a collision case. 13 On the morning of June 10, 2010, Mr. Harris was a passenger in a vehicle owned by Lamar County, and being driven by Robert Madden, a long-time county employee. 14 The Lamar County vehicle in question was a large trash truck with an arm boom utilized for picking up large debris. 15 At the time of the subject collision, both Mr. Madden and Mr. Harris were in the course and scope of their employment with Lamar County. 16 Likewise, Mr. Michael was in the course and scope of his employment with BST at the time of the accident. 17 Mr. Michael was driving a Chevrolet 2500 pickup truck owned by BST, and the truck was towing behind it a dual-axle trailer loaded with a boring tool. 18 Just before the accident, the Harris vehicle was travelling eastbound on Shears Road in Lamar County, and the BST vehicle was travelling southbound on Weathersby Road in 13 R. Vol. 6, pp T. vol. 2, p. 279, l p. 280, l Id. at p. 241, ll T. p. 281, ll Id. at p. 280, ll Id. at p. 216, ll Id. at p. 218, ll. 2-9; T. p. 238, ll

9 Lamar County. 19 The accident at issue occurred around 10:06 a.m.; weather and visibility were good. 20 The intersection of Weathersby and Shears Road is controlled by a four-way stop (a copy of trial exhibit D-6 follows) Id. at p. 282, l. 2-9; T. p. 240, ll. 7-20; T. p. 241, ll See also,, Trial Exhibitss P-19, D-6, and D Id. at p. 241, ll Trial Exhibits P-19, D-6, and D-7. 5

10 The intersection is remarkable for the fact that the intersecting road from the east (Hillcrest Drive) is slightly offset to the north of Shears Road. 22 This means that the stop sign for southbound traffic on Weathersby Road is located some distance to the north of the northern edge of Weathersby Road. 23 It further means that a southbound vehicle which comes to a full and complete stop at the stop sign would rightfully occupy the subject intersection for a significant amount of time and distance before the intersection is finally clear for travel from eastbound traffic on Shears Road. 24 Because of the configuration and surroundings at the intersection, approaching southbound vehicles on Weathersby Road are visible for quite a distance as they come to the intersection. 25 The BST truck was southbound at the stop sign and had to proceed through the long stretch of intersection on the date of the accident. 26 On the morning in question, the truck occupied by Mr. Harris was executing a wide right turn off Shears Road, heading southbound on Weathersby Road, when the left, front portion of the Lamar County truck struck the rear axle of the BST trailer on the passenger side. 27 Once the police investigation was concluded Mr. Madden and Mr. Harris continued on with the work day without further incident. 28 BST heard nothing further regarding this incident until suit was filed in August 2012, nearly three (3) years later. 29 At the trial underlying this appeal Mr. Harris called Mr. Madden and Mr. Michael as witnesses, the latter adversely. Mr. Harris also testified in support of his case. Despite the testimony of three (3) witnesses and the documentary evidence putatively supporting his theory 22 Id. See also, T. 233, ll Trial Exhibits, P-19, D-6 and D Id. 25 T. p. 239, ll Q: Is there anything to hinder or obstruct one s view looking back north along Weathersby Road? A: No, sir. Q: How far back can you see? A: Almost all the way to Lowe s. See also, Trial Exhibit, D T. vol. 2, p. 233, ll Id. at p. 283, ll Id. at p. 292, ll ; see also, T. vol. 2, p. 290, ll Harris Complaint in this action was filed on August 28, R. vol. 2, pp See also, R. vol. 6, p

11 of liability against BST and Mr. Michael, Mr. Harris failed to establish sufficient evidence to impute liability to the Appellees, even taking all testimony as true and giving all reasonable inferences. Accordingly, at the close of Mr. Harris case-in-chief, counsel for BST and Mr. Michael moved for a directed verdict, specifically addressing the insufficient evidence supporting Mr. Harris claim. 30 After hearing from both sides and considering the evidence presented, the trial court properly granted BST and Mr. Michaels Motion for Directed Verdict. 31 SUMMARY OF THE ARGUMENT Terry Harris wholly failed to present sufficient evidence of the liability of BST and Mr. Michael, even taking all testimony as true and giving the benefit of reasonable inferences. Because it is undisputed that neither Mr. Harris nor Mr. Madden saw the BST truck before the moment of impact, and because the location of impact and damage to the respective vehicles established that the BST truck legally preempted the intersection before the trailer being pulled by the BST truck was impacted by the left, front bumper of the Lamar County truck, no juror could reasonably infer that the Appellees were liable. Accordingly, this Court should affirm the trial court s grant of directed verdict. STANDARD OF REVIEW This Court employs a de novo standard of review for cases where a directed verdict has been granted. 32 A motion for directed verdict tests the legal sufficiency of the plaintiff s 30 T. vol. 3, p. 344, l. 15 p. 353, l Id. at p. 355, l. 5- p. 357, l Solanki v. Ervin, 21 So. 3d 552, 556 (Miss. 2009). 7

12 evidence. 33 A trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree. 34 should: In determining whether a directed verdict should be granted, the trial judge Look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue. 35 Finally, in considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against [the non-movant] that no reasonable juror could have found in her favor. 36 ARGUMENT I. THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEES MOTION FOR DIRECTED VERDICT BECAUSE THE APPELLANT FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT A FINIDNG OF LIABILITY. A. Terry Harris and Robert Madden s testimony At the close of Mr. Harris case, no evidence had been presented which attributed liability for the subject accident to BST and Mr. Michael, even taking all testimony as true and giving Mr. Harris the benefit of all reasonable inferences. Thus, because no reasonable juror could find for him based on the evidence then presented, the trial court properly granted the Appellees motion for directed verdict. Mr. Harris had the burden at trial to prove by a preponderance of the 33 Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1003 (Miss. 1992). 34 Vu v. Clayton, 765 So. 2d 1253, 1254 (Miss. 2000)(quoting Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992)). 35 White v. Thomason, 310 So. 2d 914, (Miss. 1975)(citing Williams v. Weeks, 268 So. 2d 340 (Miss. 1972)). 36 Fox v. Smith, 594 So. 2d 596, 603 (Miss. 1992). 8

13 evidence that BST and Mr. Michael were the proximate cause of the accident at issue. 37 This he failed to do. During trial, Mr. Harris presented only three (3) witnesses to testify regarding the cause of the subject collision. 38 He testified, along with Mr. Madden and Mr. Michael. Neither Mr. Harris, nor Mr. Madden, testified that he saw the BST truck at any point before the very moment of impact. 39 In fact, Mr. Harris testified on direct that after Mr. Madden waved a red car through the intersection, he did not see any other vehicles besides his own at the intersection. 40 He further described the accident, stating: Q. Okay. Now, when you were sitting at the intersection before Mr. Madden did you observe the other stop sign at intersection? A. Yes. Q. Did you look around? A. Looked around. Q. And after the car that I indicated with a circle went, what did you see? A. Nothing. Q. I'm sorry? A. I didn't see nothing after that, the motion to leave. Nothing else. 41 However, later, on cross-examination, Mr. Harris changed his testimony regarding whether he saw the vehicle before impact, stating that he saw the BST truck all in the course as it came through the intersection. He later even estimated the miles per hour the BST truck was allegedly traveling. 42 Finally, on direct examination, he testified, over objection, 43 that based on his 37 Miss. Dep t of Mental Health v. Hall, 936 So. 2d 917, 923 (Miss. 2006)( To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation, and injury ). 38 Harris also called Dr. Joe Kim, by deposition, to testify regarding alleged injuries. 39 T. vol. 2, p. 283, ll ; Id. at p. 269, ll Id. at p.282, l. 25 p. 283, l Id. at p. 238, ll (emphasis added). 42 T. vol. 3, p. 302, ll See also, Id. at p. 306, l. 20 p. 308, l Said objection which was overruled by the trial court was also accompanied by a motion in limine which was not fully granted. The basis of Appellees objection and motion in limine was that the witness cannot testify pursuant to Miss. R. Ev. 701 as an eyewitness when he has testified on multiple occasions, under oath, that he did not see the 9

14 perception and observation as an eyewitness to his accident he assumed the BST truck ran the stop sign because he was travelling too fast and doing too much damage. 44 Mr. Harris, however, was quickly impeached on multiple accounts by the various references to his sworn deposition testimony taken in December, 2012, in which he repeatedly testified that the first time he saw the BST truck was when it hit us. 45 Further, he was impeached by his prior deposition testimony regarding his inconsistent testimony about the estimated miles per hour at which the BST truck was traveling. After counsel for BST and Mr. Michael directed Mr. Harris to a page and line of his deposition, the following testimony occurred: Q. quoting deposition) And I gather that because you didn't see the phone company truck before the impact, you don't know how fast he was going; is that right? And your answer on Line 18 is what? A. Right. Q. So at that time when you were being deposed and were under oath and testifying just like you a re today in court, you told me that you didn't have any estimate of how fast he was going, because you didn t see him; isn't that true? A. Rig ht. 46 Corroborating Mr. Harris testimony that he did not see the BST truck before impact, Mr. Madden stated that he stopped at the stop sign, looked left and right, and did not see anything BST vehicle until the moment of impact. Because he did not see the vehicle before impact, there can be no eyewitness testimony regarding what took place before impact, and any such testimony would be purely based on speculation. See, Redhead v. Entergy Miss., Inc., 828 So. 2d 801, (Miss. Ct. App. 2001). 44 T. vol. 2, p. 286, ll T. vol. 3, p. 302, l. 27 p.305, l. 7. See also, Id. at p. 305, l. 20- p. 306, l Id. at p. 308, ll (emphasis added). 10

15 there. 47 Again explaining what took place, Mr. Madden testified that after letting a red car through the intersection, I looked back to the left and I didn t see nobody. 48 When asked about his opinion regarding the speed of the BST vehicle at the time of impact, Mr. Madden testified, I don t know. Like I say, I didn t see him. 49 Most importantly, Mr. Madden testified on direct examination that he had no explanation for the accident. 50 Mr. Madden testified as follows: Q. You don t know whose fault it was or what happened? A. Should have been mine. I didn t see him. In fact, they say I hit the trailer. I never seen the damage on the trailer. Q. Do you have an answer as to whether he stopped at that stop sign? A. I have no idea. Q. Okay. But you never saw him? A. I never saw him. 51 On cross-examination, Mr. Madden admitted that he had begun to pull into the intersection when the accident took place. 52 When asked whether the BST truck had proceeded completely through the intersection at the time of impact, Mr. Madden responded, As far as I know. Like I say, I didn t get to see either one of them. 53 While Mr. Madden was not asked to testify about the location of impact and damage to the vehicles, both Mr. Harris and Mr. Michael testified about the location of damage to both vehicles. During cross-examination, Mr. Harris testified that the impact occurred on the front, driver s side of the Lamar County truck. 54 Even though Mr. Harris contended that the impact 47 T. vol. 2, p. 269, ll Id. at p. 270, l. 28- p. 271, l Id. at p. 270, ll Id. at p. 271, ll Id. at ll Id. at p, 272, ll Id. at ll T. vol. 3, p. 311, ll

16 was significant, and caused serious injuries to him, he had to admit that the fragile left head light and turn light assemblies were unbroken in the accident compelling evidence that the impact was indeed minor. 55 B. Eddie Michael, Jr. s testimony As his first witness during his case in chief, Mr. Harris called Mr. Michael to testify adversely. 56 Discussing the events on the date in question, Mr. Michael testified that he came to a complete stop at the stop sign at the intersection of Shears Road and Weathersby Road. 57 Mr. Michael also testified that he saw the Lamar County truck approaching the stop sign when he was stopped at the sign. 58 On direct examination, Mr. Michael was able to give his complete account of the accident. Mr. Michael testified about the scene at the stop bar, explaining: A. I noticed a red sedan came to the intersection. Simultaneously I saw the Lamar County truck coming down the hill from Shears. And me and the red car stopped at the same time, so I told the red car to come on. And when she started to pull, I started going. 59 Mr. Michael testified that he saw the Lamar County truck coming down Shears Road and that the Lamar County truck was approaching the intersection, but it was not yet stopped when he was at the stop bar. 60 Describing what happened after his complete stop, Mr. Michael testified: A. Well, as I -- as the red car came through the intersection, I started going. And then after I got all the way through the 55 T. vol. 3, p. 311, ll. 4-23; see also Trial Exhibit, D-4, GBEO T. vol. 2, p. 214, ll Id. at p. 223, ll Id. at p. 234, ll Id. at p. 240, ll Id. at p. 241, ll

17 intersection I felt the bump. And I realized that Lamar County truck hit my trailer, so I just pulled over to the side. 61 Discussing the events after the accident, Mr. Michael testified that Mr. Madden, the driver of the Lamar County truck, told him that he simply did not see the BST truck and trailer. 62 Further, when asked if Mr. Harris said anything to him after the accident, Mr. Michael stated: A. Well, after I walked over there and got a cigarette from him, he had told me, old buddy just didn t see me. 63 Finally, Mr. Michael testified that Mr. Harris never said anything at the scene of the accident to indicate the he thought Mr. Michael was to blame. 64 Later on direct examination, Mr. Michael testified regarding the location of impact and damage to the vehicles. Mr. Michael testified from his recollection and looking at photographs in evidence 65 that the impact occurred to the trailer being pulled by the BST truck. 66 Specifically, he stated, it [the impact] was to the rear axle of the trailer, right in this area (using a pointer to show the jury on the picture). It was a tire right here and a fender. 67 Mr. Michael made clear that the left, front of the Lamar County truck hit the axle and tire of the trailer being pulled by the BST truck. 68 After authenticating the diagram that was created by accident reconstructionist Brett Alexander, 69 Mr. Michael used the diagram to explain to the jury how the BST truck he was driving was already all the way past the intersection by the time of impact. 70 Moreover, Mr. 61 Id. at p. 242, ll Id. at p. 243, ll Id. at ll Id. at p. 244, ll See Trial Exhibit, D-4, GBEO , T. vol. 2, p. 245, ll Id. at ll See also photographs at Trial Exhibit, D T. vol. 2, p. 245, ll Trial Exhibit, D-6. Diagram of intersection by accident reconstructionist, Brett Alexander. 70 T. vol. 2, p. 248, l. 23- p. 249, l

18 Michael testified, looking at the printout of the BST truck s GPS data, already in evidence as D- 8, 71 that he agreed with the data where it shows that at the approximate time of the accident his truck was traveling nine (9) miles per hour. 72 Accordingly, Mr. Harris failed to present any evidence that Mr. Michael and BST were liable for the accident; thus, the decision of the trial court was proper, and the grant of directed verdict should be affirmed. C. No juror could have reasonably inferred that Appellees were liable. Harris argues that although no affirmative proof of alleged negligence by Mr. Michael and BST was presented, the motion for directed verdict should have been denied because the jury might have made an inference that Mr. Michael ran the stop sign. 73 Mr. Harris argument is illogical, ignores the physical evidence, and disregards the distinction between reasonable inference and speculation. Further, this argument is contrary to established law regarding the proper basis that must be shown to allow for an inference of negligence. 74 When considering a motion for directed verdict, courts are to give the non-movant the benefit of all reasonable inferences. 75 Black s Law Dictionary defines an inference as a conclusion reached by considering other facts and deducing a logical consequence from them. 76 The Mississippi Supreme Court has noted that, in cases where causation need be inferred from circumstantial evidence, the rule applied is as follows: Proof of the necessary factual causal connection may be by either direct or circumstantial evidence, but in the event the latter is used, it must be sufficient to 71 See Trial Exhibit, D-8, GPS Data Printout from Eddie Michael s truck on June 10, See entry at 9:58:05 a.m. 72 T. vol. 2, p. 249, ll App. Brief, pp , p. 15, p A Am. Jur. 2d Negligence, Bankston v. Pass Rd. Tire Ctr., Inc., 611 So.2d 998, 1003 (Miss. 1992). 76 Bryan A. Garner, Black s Law Dictionary, 4 th Pocket Ed.,

19 make plaintiff's asserted theory reasonably probable, not merely possible, and more probable than any other theory based on such evidence. 77 The American Jurisprudence further addresses the latitude to make inferences of negligence from circumstantial evidence where it states: In the absence of direct or specific positive evidence, negligence may be inferred from the totality of the circumstances surrounding injury, if not from the fact of injury itself. However, while inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts. Where plaintiff in a negligence action has only presented proof that the actual cause was one of a number of possibilities, to enable an inference to be drawn that any particular cause is probable, the other causes must be eliminated. Thus, when the evidence shows that it is just as likely that accident might have occurred from causes other than defendant's negligence, the inference that his negligence was the proximate cause may not be drawn. 78 Moreover, since 1942, the Mississippi Supreme Court has held that no judgment in a court of law may be sustained when resort to conjecture or surmise is necessary in order to arrive at the conclusions embraced in the judgment. 79 The court in Blizzard specified further that the rule is that no recovery can be had where there is no showing from which it can be determined which of several possible causes produced the injury where some of the causes did not involve negligence of the party charged. 80 In the case at bar, Mr. Harris merely presented the jury with one of a number of possibilities about how the two vehicles came to impact one another in the subject intersection and the only possibility which is consistent with Harris theory amounts to nothing but mere speculation. To accept Mr. Harris view of the case, one must ignore: (1) the undisputed 77 Mississippi Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, (Miss. 1998)(quoting 57A Am. Jur. 2d Negligence 462 (1989)(footnotes omitted)(emphasis added)). 78 Id. (emphasis added) 79 Blizzard v. Fitzsimmons, 193 Miss. 484, (Miss. 1942). 80 Id. at

20 photographic and testimonial evidence regarding the location of impact and damage which both clearly prove that the Lamar County truck pulled into the intersection already lawfully occupied by the BST trailer; (2) the fact that there are clear sight lines well to the north, which means that Mr. Madden would have had every opportunity to see the BST truck if he had been keeping a proper lookout; and, (3) the fact that there is no witness, no document, indeed not one shred of evidence in this record to demonstrate that Mr. Michael was speeding, ran a stop sign, or did anything wrong. In Rudd v. Montgomery Elevator Co., 81 the Mississippi Supreme Court considered an appeal from a J.N.O.V. granted by a trial court, dismissing the action following a jury verdict in plaintiff s favor. Rudd filed suit against the elevator company alleging negligent maintenance following his receipt of injuries during an elevator malfunction. 82 In affirming the trial court s decision, the Mississippi Supreme Court noted that the sole issue was whether sufficient evidence had been presented to find that the elevator company had negligently maintained the units, thereby causing the malfunction. 83 Providing the reasoning for their finding that the Rudd s testimony and all reasonable inferences therefrom failed to create a jury issue, the Court noted: Cunningham testified that the cause of the malfunction was a misalignment of a roller at the fourth floor, which would have been obvious to Hincks. His sole basis for this was a conjecture arising from inspecting the elevator a year and a half following the incident on November 11, 1986, and, according to him, examining the maintenance and repair tickets, and the testimony of Hincks. Hincks positively testified, however, that he did examine the rollers at the fourth floor level on November 11 following the accident, and found them to be in alignment. There is nothing other than pure speculation, however, that Hincks somehow missed this the previous day. Against such conjecture was Hincks's positive testimony there was no misalignment on November 11, and the fact that 81 Rudd v. Montgomery Elevator Co., 618 So. 2d 68, (Miss. 1993). 82 Id. at p Id. at. pp

21 the elevator continued to operate smoothly without mishap for at least another eighteen to twenty hours. 84 The Rudd Court further explained the distinction between inference and speculation, stating, [i]t might very well be true that Hincks somehow missed seeing a misalignment of the roller on November 11, just as it might be true that Montgomery could have rendered better maintenance and repair service... It was incumbent upon Rudd, however, to offer something beyond pure speculation that there was negligence of this nature and that it in fact caused the malfunction. 85 This Court is faced with testimony strikingly similar to that in Rudd. Mr. Harris argues that though neither he nor the driver, Mr. Madden, saw the BST truck before impact, he believes BST ran the stop sign. 86 Harris presented no affirmative evidence whatsoever other than his own speculation to support that conjecture. Conversely, Mr. Michael testified that he stopped at the stop sign, saw the Lamar County truck approaching, and properly proceeded into the intersection after waving a red car through. 87 Just as in Rudd, this Court has a lack of evidence coupled with conjecture on one side and affirmative testimony on the other. And, just as in Rudd, Mr. Harris has failed to offer something beyond pure speculation that there was negligence of this nature and that it in fact caused the malfunction [accident]. 88 The case of State Farm Auto Ins. Cos. v. Davis 89 is on all fours with the case at bar. In Davis, the plaintiff (Davis) and defendant (Barnes) were traveling in opposite directions on a state highway. Plaintiff turned left in front of defendant, and a collision ensued. Just like in the present case, plaintiff testified that she did not see defendant s vehicle until the impact. 90 But, 84 Id. at pp Id. at p App. Brief, p. 12; Mr. Harris testified that, as an eyewitness to the accident, he believed that Mr. Michael ran the stop sign. 87 T., vol. 2, p. 240, l. 9- p. 241, l Rudd, 618 So. 2d at So. 2d 192 (Miss. App. 2004). 90 Id. at

22 plaintiff testified that she was a good, careful driver, and was paying attention to the road before the accident. 91 Plaintiff s case asked the jury to infer that defendant was speeding, or not keeping a proper lookout, and thus was negligent for failing to avoid the accident, 92 even though he admittedly never saw the defendant s vehicle before the crash - precisely the same sort of theory espoused by Mr. Harris here. Defendant appealed from an adverse jury verdict, and the Court of Appeals reversed and rendered, saying in relevant part: As previously noted, Davis, in executing a left-hand turn, owed Barnes the statutory duties of maintaining a proper lookout and yielding the right-of-way. Davis maintains that she kept a proper lookout before turning across Barnes's lane. This contention, however, is supported by nothing other than her self-serving testimony, which is contradicted by the facts of the case. Davis testified on direct as follows: Q. And [Ms. Davis] were you paying attention? A. Yes. Q. How would you describe yourself as a driver? A. Good. Careful. Q. Is that all of the time or some of the time? A. That's all of the time because my life is in danger just like everybody else coming down the road. Q. Now, prior to making that left, did you see Sheila Barnes?... A. No, I didn't. Q. Were you looking for a vehicle coming from that direction? A. Yes. I -- it's a curve. Q. Would you -- were you paying extra attention to that? A. Yes. Q. And what happened after you began making that left? A. All of a sudden, something hit my car, a car hit me. Well, she hit my car. * * * In her testimony, Davis alluded to the fact that she was extra careful in executing this particular left-hand turn because visibility of approaching vehicles is limited by a curve in the road immediately ahead of where she was turning. Therefore, the degree of caution Davis was required to exercise in making that particular left turn grew in direct proportion to the potential danger that was involved. As Davis testified, she simply 91 Id. 92 Id. at

23 looked and then, having seen nothing, turned. From these facts, no reasonable person could find that Davis met the minimal standard of care Furthermore, Barnes testified on direct and cross-examination to the fact that she was not speeding, and no evidence to the contrary was offered. Moreover, none of the evidence at trial lends itself to infer that Barnes was not paying attention. No reasonable individual could resolve the facts of this case finding that Barnes was contributorily negligent, and even if Barnes was found to be contributorily negligent, that fact alone does not preclude her from recovering damages. Most significant, however, is the rule that the testimony of a witness which is uncontradicted, and who is not impeached in some manner known to the law, where he is not contradicted by the circumstances, must be accepted as true. 93 It is plain from the uncontradicted testimony of Mr. Michael, driver of the BST truck, that neither he nor BST were negligent in this accident. The trial court had before it affirmative testimony from both passengers in the Lamar County truck that they never saw the BST truck before impact. 94 The trial court had undisputed testimony from Mr. Michael that he saw the Lamar County truck approach as he was stopped at the sign, he legally preempted the intersection, and the trailer he was pulling was hit by the Lamar County truck. 95 Mr. Harris, himself, corroborated that the damage was to the trailer being pulled behind the BST truck. 96 The trial court had undisputed testimony from Mr. Madden that this accident was likely his own fault because he never saw Mr. Michael or the BST truck, 97 and Mr. Madden s testimony was corroborated by Mr. Michael through the statements Mr. Madden and Mr. Harris made to Mr. Michael at the scene following the accident. 98 The trial court did not err in granting a directed verdict in this case. Mr. Harris proved nothing in the way of causation by Mr. Michael and BST. More importantly, even taking all the evidence in the light most favorable to Harris, no reasonable juror could infer that Mr. Michael 93 Id. at (internal quotations and citations omitted). 94 T. vol. 2, p. 283, ll See also, Id. at p. 271, ll Id. at p. 240, ll See also, Id. at p. 241, ll. 2-12; and see, Id. at p. 242, ll Id. at p. 290, ll Id. at p. 271, ll Id. at p. 243, ll

24 was at fault. Mr. Harris wanted the jury to believe - and now wants this Court to believe - that though he was so far away from the intersection that his truck was not visible as it approached, Mr. Michael somehow sped through the intersection (while pulling a trailer loaded with a heavy boring tool) fast enough that he was able to beat the Lamar County truck through the long, offset intersection such that the resulting impact occurred to the trailer being pulled by Mr. Michael and the left, front bumper of the Lamar County truck. 99 Such a scenario is neither logical nor feasible, constitutes rank speculation, and is certainly not a reasonable inference entitling Mr. Harris to submit his case to the jury. Rather, it is the direct evidence from Mr. Michael that is consistent with the physical facts, to the effect that Mr. Madden negligently pulled into the intersection without keeping a proper lookout, at which point he struck the rear axle of the BST trailer after the BST truck had made it completely through the intersection! Neither of the occupants of the Lamar County truck saw the BST truck before impact. 100 As such, and taking into account the photographic evidence presented at trial of the damage to the left, front bumper of the Lamar County truck and the right, rear axle of the BST trailer, it is clear that no reasonable juror could infer that Mr. Michael was somehow at fault for this accident. Because the evidence presented was so overwhelmingly in favor of Mr. Michael and BST at trial, and no evidence of causation by them was presented, the trial court properly granted their motion for directed verdict. 99 App. Brief, p. 15, p T. vol. 2, p. 269, ll. 7-14; Id. at p. 282 l. 25 p. 283, l

25 II. THE TESTIMONY AND EVIDENCE PRESENTED AT TRIAL DEMONSTRATES THAT THE APPELLEES VEHICLE LEGALLY PREEMPTED THE SUBJECT INTERSECTION SUCH THAT NO REASONABLE JUROR COULD HAVE FOUND IN APPELLANT S FAVOR. Two facts which establish that the BST truck legally preempted the subject intersection are undisputed: (1) Mr. Madden had just begun to turn into the intersection when the impact occurred 101 and (2) the BST truck had already made it through the intersection when the impact occurred. 102 Accordingly, the trailer being pulled by the BST truck sustained the impact. 103 Even if it would not be pure conjecture for a juror to believe that, somehow, the BST truck ran the stop sign as Mr. Harris suggests, Mr. Michael and BST still would not be liable for the accident because the BST truck legally preempted the intersection. 104 Accordingly, even if it was reasonable for a jury to believe Mr. Harris rank speculation about how he believes the accident took place, the jury still would not have been able to find that Appellees were liable. Miss. Code Ann provides that: 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 The driver of a vehicle shall likewise stop in obedience to a stop sign as required by this chapter at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed T. vol. 2, p. 285, ll See also, T. vol. 2, p. 269, ll And see, Trial Exhibit D T. vol. 2, p. 249, ll See also, Trial Exhibit D Id. 104 Miss. Code Ann Miss. Code Ann (emphasis added). 21

26 The facts in this case clearly establish that the sole cause of the accident was the failure of Robert Madden to yield the right-of-way to the BST vehicle. The testimony of both Mr. Harris and Mr. Madden reflect that neither of them saw the BST truck until the very moment of impact, 106 meaning that it is improper for either of them to render opinions in support of Mr. Harris liability claim. 107 Moreover, as the photographic evidence demonstrates, the BST truck and trailer had occupied the intersection for a significant distance before the point of impact. 108 Finally, the mere fact that the Lamar County truck struck the trailer being pulled by the BST truck, and then only after the BST truck had cleared the intersection itself, establishes beyond reasonable argument that the BST truck and trailer had lawfully occupied and preempted the intersection. Therefore, Mr. Madden was obligated to allow the BST truck and trailer to completely clear the intersection before proceeding. 109 This he failed to do, meaning that Mr. Madden s negligence was the sole cause of this accident. 110 Even if a reasonable juror could somehow infer that Mr. Michael ran the stop sign, it is clear beyond reasonable doubt that the BST truck preempted the intersection such that the liability is still Mr. Madden s for failing to yield the right-of-way. 111 Therefore, this Court should affirm the trial court s grant of directed verdict. 106 T. vol. 2, p. 269, ll. 7-14; Id. at p. 282 l. 25 p. 283, l Redhead v. Entergy Miss., Inc., 828 So. 2d 801, (Miss. Ct. App. 2001)(emphasis added)( [the] witnesses are not qualified to make statements of opinion as to the matter of the fire s origin. Under Mississippi Rule of Evidence 701, a lay witness's opinion testimony is limited "to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." MRE 701. None of these witnesses actually saw the fire start. All these witnesses saw were burnt trees. If the witnesses wanted to testify about their opinion as to how burnt the trees were, this would be allowable because that opinion would be based on something they actually saw. However, they cannot testify as to how or where the fire was started because this is beyond the scope of their perceptions ). 108 Trial Exhibit, D Miss. Code Ann See also, photographic evidence of location of damage to vehicles at Trial Exhibit D Miss. Code Ann Id. 22

27 III. PERIPHERAL ISSUES RAISED BY THE APPELLANT. Within his brief, Mr. Harris raised several issues which are irrelevant to the determination of this Court about whether or not directed verdict was properly granted. 112 However, in an effort to be thorough, Mr. Michael and BST will respond to the same. A. Credibility of Eddie Michael, Jr. Mr. Harris brief makes much ado about the credibility of Eddie Michael, Jr., but, in doing so, it leaves out significant portions of Mr. Michael s testimony explaining the very issues his brief addresses. 113 This mischaracterization of Mr. Michael s testimony and character is improper and is easily refuted by a showing of his complete testimony. Mr. Harris takes issue with Mr. Michael s deposition testimony regarding whether or not he was using his cell phone at the time of the accident. 114 It is plain that Mr. Michael testified in his deposition that he was not using a cell phone at the time. 115 It is also plain that cell phone records, obtained after his deposition, revealed that Mr. Michael was using the cell phone at the time. 116 Though Mr. Harris brief quotes only the portion of his testimony where Mr. Michael admits that he made an incorrect statement in his deposition, Mr. Michael also testified explaining his mistake, stating: Q. Now I ll ask you whether or not you had a chance to review your phone records or your employment records before you were deposed? A. No, sir. Q. Now, once you had a chance to review those, you were asked about this affidavit. What did you do? Did you execute an affidavit? A. Yes, sir. 112 Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1003 (Miss. 1992)( A motion for directed verdict tests the legal sufficiency of the plaintiff s evidence ). 113 App. Brief, pp Id. at pp T. vol. 2, p. 228, ll ; see also, Id. at p. 251, l. 17-p.252, l Id. at p. 251, l. 17-p.252, l