United States Court of Appeals,
Fifth Circuit.
No. 93-7309.
Maureen HILTGEN, Individually and as Parent and Natural Guardian
of Nicole Hiltgen and Molly Hiltgen, minor children and as Personal
Representative of Peter J. Hiltgen, Deceased, Plaintiff-Appellee-
Cross-Appellant,
v.
Douglas Leon SUMRALL, et al., Defendants-Appellants-Cross-
Appellees.
Oct. 27, 1994.
Appeals from the United States District Court for the Southern
District of Mississippi.
Before REYNALDO G. GARZA, DeMOSS and PARKER1, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Maureen Hiltgen filed this diversity wrongful death action
against Douglas Leon Sumrall ("Sumrall"), The Mason & Dixon Lines
("Mason"), and D. Larry Abston ("Abston"), asserting negligence and
vicarious liability for an automobile accident that caused the
death of her husband, Peter J. Hiltgen, on March 6, 1989. After a
trial by jury, the district judge entered judgment on the verdict
against all of the defendants, jointly and severally, in favor of
the plaintiff on March 5, 1992.
The defendants' post-trial motions were ultimately denied, and
this appeal followed. The plaintiff filed a cross-appeal as well,
which was contingent only. Since we find no merit in the
1
Judge Parker participated by designation in the oral
argument of this case as a United States District Judge for the
Eastern District of Texas. Since that time he has been appointed
as a Fifth Circuit Judge.
1
defendants' appeals, we do not address the points of error raised
by the plaintiff.
FACTS
The accident from which this case arose occurred on March 6,
1989 at approximately 10:00 p.m. on Interstate 20 near Leeds,
Alabama. Peter Hiltgen was killed instantly when his van slammed
into the rear of a tractor-trailer rig driven by Sumrall. Sumrall
is a Mississippi resident who was employed by Abston. Abston, also
a Mississippi resident, owned the tractor-trailer, which had been
leased to Mason for the purpose of carrying a load of plastic pipe
from Quitman, Mississippi to Woodstock, Georgia. Mason is a
Delaware Corporation with its principal place of business in
Tennessee, and an agent in Meridian, Mississippi.
Prior to 10:00 p.m. on March 6, 1989, Sumrall pulled the
tractor-trailer into the emergency lane or shoulder on the
right-hand side of I-20 East, just outside Leeds, Alabama, near the
144 mile marker. Sumrall testified later that the purpose of this
stop was to check his load and urinate. The evidence shows that
when Sumrall was prepared to continue his haul to Woodstock,
Georgia, he started to accelerate in the emergency lane and slowly
brought the tractor-trailer back into the right-hand lane of
traffic. The evidence also shows that the tractor-trailer was
travelling approximately 25-30 miles per hour at the time of the
collision.
Approximately seven miles west of the collision, Franklin
Howard and Gordon Simpson, travelling in the same vehicle, had
2
entered traffic on I-20 right behind the van driven by Peter
Hiltgen. They testified that the van was not being driven in a
reckless manner when they were in a position to observe it prior to
the accident. Fifteen to twenty seconds before the collision, the
Hiltgen van completed a safe pass of a vehicle driven by Britt
Smith. Mr. Smith testified that the van was operating with only
one headlight, but that it was being operated in a safe manner in
all other respects. The evidence indicates that the Hiltgen van
was travelling approximately 65-68 miles per hour immediately prior
to the collision.
Shortly after the van passed Mr. Smith's vehicle, Smith,
Howard, and Franklin saw the rear of the van suddenly jump in the
air, and then saw the van veer off into the median. All three
witnesses testified that at the time of the collision they could
not tell what the van had run into. In addition, all three
testified that they did not see the tractor-trailer rig or its
lights prior to the accident even though, in their opinion, they
were in a position to have seen the tractor-trailer if it had had
its lights on.
Prior to trial, the district court ruled that Alabama law
would be applied to the negligence claim against Defendant Sumrall.
Thus, the defendants asserted the affirmative defense of
contributory negligence, which, if proven, provides a complete bar
to the plaintiff's recovery under Alabama law.2 The district court
2
See, e.g., Alabama Power Co. v. Scholz, 283 Ala. 232, 215
So.2d 447, 452 (1968).
3
also ruled that Mississippi law would apply to the vicarious
liability claim against Defendant Abston because the employment
relationship between Sumrall and Abston was entered into in the
State of Mississippi.
Also prior to trial, Defendant Abston moved for summary
judgment, arguing that he could not be held vicariously liable for
Sumrall's actions because the trip-lease and Federal Motor Carrier
Safety Regulation 49 C.F.R. § 1057.12 provided that during the term
of the lease, Mason was deemed to have exclusive possession,
control, and use of the equipment, and in addition that there was
no evidence that Abston retained sufficient control over Sumrall to
render Abston liable under the doctrine of respondeat superior.
The district court denied Abston's motion, holding that a genuine
issue of material fact existed with regard to Abston's control over
Sumrall.
The parties presented physical evidence, lay testimony, and
expert testimony. At the close of all the evidence, the defendants
moved for judgment as a matter of law under Rule 50(a) of the
Federal Rules of Civil Procedure. The district judge denied this
motion and submitted the matter to the jury by use of a special
verdict form. The jury found that Sumrall had been negligent and
that his negligence was a proximate cause of the collision. The
jury also found that Peter Hiltgen had been negligent, but found
that Hiltgen's negligence was not a proximate cause of the
collision. In addition, the jury found that Abston was liable for
4
Sumrall's negligence.3 Having found against all of the defendants,
the jury then awarded the plaintiff $1,500,000.00.4 The district
court entered judgment on the jury verdict.
Following judgment, the defendants renewed their motions for
judgment as a matter of law under Rule 50(b), and moved
alternatively for a new trial under Rule 59 of the Federal Rules of
Civil Procedure. Initially, the district court decided to grant
the defendants' motion for a new trial on the grounds that the
verdict was based in part on the incompetent testimony of
plaintiff's expert witness. However, upon motion for
reconsideration by the plaintiff, the court held that any error in
admitting the testimony of the plaintiff's expert witness had been
waived by the defendant's when they failed to raise a
contemporaneous objection. Therefore, the court withdrew its order
granting the defendants' motion for new trial. In addition, the
district court was very clear that the defendants' renewed motions
for judgment as a matter of law were denied.
After the court withdrew its order granting a new trial on the
bases of erroneously admitted evidence, the court considered the
defendants' motion for new trial based on the excessiveness of the
3
Defendant Mason conceded prior to trial that it was
responsible, by operation of the trip lease and federal
regulations, for Sumrall's actions. Therefore, there was no
separate instruction or finding of the jury regarding Mason's
liability.
4
Under Alabama law, the plaintiff in a wrongful death action
may only recover punitive damages. See, e.g., Tatum v. Schering
Corp., 523 So.2d 1042, 1052-57 (Ala.1988). Having ruled that
Alabama law applied, the district court appropriately instructed
the jury on punitive damages.
5
jury's punitive damages award and request for remittitur. The
court held a hearing to review the propriety of the award, as
required by Alabama law,5 and held that the amount awarded by the
jury was not excessive.
On appeal, the defendants make the following arguments: 1)
that the evidence is not legally sufficient to support the jury
verdict and thus they are entitled to judgment as a matter of law;
2) that the jury's verdict is contrary to the great weight of the
evidence and thus they are entitled to a new trial; 3) that
improper jury instructions and reading of certain stipulations
misled the jury and thus they are entitled to a new trial; and 4)
that the jury's punitive damages award is excessive and thus they
are entitled to a new trial on the damages issue or a remittitur of
the jury's verdict. In addition, Defendant Abston argues that as
a matter of law he is not vicariously liable for Sumrall's actions.
SUFFICIENCY OF THE EVIDENCE
A motion for judgment as a matter of law (previously, motion
for directed verdict or J.N.O.V.) in an action tried by jury is a
challenge to the legal sufficiency of the evidence supporting the
jury's verdict. On review of the district court's denial of such
a motion, the appellate court uses the same standard to review the
verdict that the district court used in first passing on the
motion. Bridges v. Groendyke Transp., Inc., 553 F.2d 877 (5th
Cir.1977). A jury verdict must be upheld unless "there is no
5
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d
812, 839 (Ala.1988).
6
legally sufficient evidentiary basis for a reasonable jury to find"
as the jury did. Fed.R.Civ.P. 50(a)(1).
This court has consistently applied this standard to show
appropriate deference for the jury's determination.
A jury may draw reasonable inferences from the evidence, and
those inferences may constitute sufficient proof to support a
verdict. On appeal we are bound to view the evidence and all
reasonable inferences in the light most favorable to the
jury's determination. Even though we might have reached a
different conclusion if we had been the trier of fact, we are
not free to reweigh the evidence or to re-evaluate credibility
of witnesses. We must not substitute for the jury's
reasonable factual inferences other inferences that we may
regard as more reasonable.
Rideau v. Parkem Indus. Services, Inc., 917 F.2d 892, 897 (5th
Cir.1990) (citations omitted).
The defendants address two distinct points, arguing that the
evidence is insufficient to support the jury verdict. First, they
contend that the evidence does not support the jury's conclusion
that Sumrall was negligent. The district court specifically
rejected this contention.6 We agree with the district court's
determination.
Specifically, the defendants argue that there was no evidence
that the tractor-trailer's lights were off at the time of the
collision. However, in our opinion, the testimony of Franklin
Howard, Gordon Simpson, and Britt Smith provided ample evidence to
support a finding that the tractor-trailer's lights were off, and
thus that Sumrall was negligent in his operation of the rig.7 The
6
Federal District Court Record at Vol. 12, p. 1531 n. 3.
7
Because we hold that the testimony of plaintiff's lay
witnesses provides sufficient evidence to support the jury's
7
defendants rely on Sumrall's testimony that he never turned the
lights off. However, the jury was free to consider Sumrall's
interest in the outcome of the litigation and his credibility
generally, and we will not replace the jury's evaluation of the
weight or credibility of witness testimony with our own.8
Second, the defendants argue that the evidence does not
support the jury's conclusion that Peter Hiltgen's negligence was
not a proximate cause of the collision. This issue was raised by
the defendants' assertion of the defense of contributory
negligence. Contributory negligence, under Alabama law, is a
defense that is a complete bar to the plaintiff's recovery if
proven. It is an affirmative defense on which the defendant bears
the burden of proof. Robertson v. Travelers Inn, 613 So.2d 376,
379 (Ala.1993). In addition to the burden of showing that the
plaintiff failed to use due care for his own safety, the defendants
bore the burden of proving that such failure was a proximate cause
of the injury. American Furniture Galleries, Inc. v. McWane, Inc.,
477 So.2d 369, 372 (Ala.1985).
The evidence shows that Hiltgen was operating his van with
finding on this point, we find it unnecessary to address the
basis of the testimony provided by plaintiff's expert witness.
We note that the defendants do not argue on appeal that the
testimony of plaintiff's expert was improperly admitted.
8
The defendants also contend that the "negative" testimony
of the plaintiff's witnesses should not be allowed to outweigh
Sumrall's "positive" testimony to the contrary. Although the
defendants have made a valiant effort to phrase this argument in
the language of legal technicality, in essence it is no more than
a request that we take the questions of weight and credibility
away from the jury. We must deny this request for the reasons
given above.
8
only one functional headlight. The evidence also allowed a finding
that Hiltgen was driving too fast under the circumstances and that
he was inattentive to the road in front of him at the time of the
collision. Thus, the jury's conclusion that Peter Hiltgen was
acting negligently at the time of the collision is supported by the
evidence; but, as just explained, this finding establishes only
one part of the affirmative defense of contributory negligence.
The defendants argue that the testimony of the plaintiff's
expert regarding the effectiveness of the reflectors used on the
rear of the tractor-trailer and the average time necessary for
human reaction necessitates a finding that Peter Hiltgen's
negligent inattentiveness was a proximate cause of the accident.
Defense counsel have even provided us with mathematical
calculations showing that the deceased had ample time to react and
avoid, or at least mitigate, the fatal accident. However, even if
we accept the accuracy of their calculations, it does not require
the conclusion defendants propose.
The element of causation may be broken down into two parts:
factual or "but-for" causation and legal or proximate causation.
Hilliard v. City of Huntsville Elec. Util. Bd., 599 So.2d 1108,
1111 (Ala.1992). Factual causation, or "but for" causation, asks
whether the complained of injury or damage would have occurred but
for the act or omission of the party in question. Proximate or
legal causation asks whether the act or omission of that party is
of such a nature that a court of law will recognize it as the legal
cause of the injury. "In Alabama, the issue of proximate causation
9
hinges on foreseeability." Id. at 1111-12 (quoting Springer v.
Jefferson County, 595 So.2d 1381 (Ala.1992)). At most, defendants'
calculations could be said to establish factual or "but-for"
causation, i.e. that the collision would not have occurred but for
Hiltgen's inattentiveness. Proximate or legal causation is not as
easily demonstrated with scientific certainty and is most often a
question for the jury.
We must be especially careful when reviewing a denial of a
motion for judgment as a matter of law where the moving party has
the burden of proof on the issue in question.9 We cannot say that
the defendants presented such proof that a reasonable jury could
only reach the conclusion that Peter Hiltgen's negligence was a
proximate cause of the accident. Therefore, we must hold that the
jury's determinations regarding negligence and proximate causation
are supported by legally sufficient evidence.
MOTION FOR NEW TRIAL
Our review of the district court's denial of a motion for new
trial is more deferential than our review of a denial of a motion
for a judgment as a matter of law. "We will reverse the trial
court's denial of a motion for new trial only when there is a clear
showing of an abuse of discretion." Dawsey v. Olin Corp., 782 F.2d
1254, 1261 (5th Cir.1986).
1. WEIGHT OF THE EVIDENCE
9
See Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 n.
9 (5th Cir.1980); Steven A. Childress & Martha S. Davis, Federal
Standards of Review § 3.06, at 3-65 (2d ed. 1992); 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 2535,
at 592-93 (1971).
10
Defendants argue that they are entitled to a new trial
because the jury's verdict is contrary to the great weight of the
evidence. To show an abuse of discretion, the defendants would
have to be able to show "an absolute absence of evidence to support
the jury's verdict." Dawsey, 782 F.2d at 1262 (quoting Bailey v.
Southern Pacific Transp. Co., 613 F.2d 1385, 1391 (5th Cir.) (per
curiam) (quoting Urti v. Transport Commercial Corp., 479 F.2d 766,
769 (5th Cir.1973)), cert. den., 449 U.S. 836, 101 S.Ct. 109, 66
L.Ed.2d 42 (1980)). Since we have already held that the jury's
verdict was supported by the evidence, we do not find an abuse of
discretion.
2. ERROR OF THE TRIAL COURT
Defendants also argue that they are entitled to a new trial
because certain instructions given to the jury and stipulated facts
read to the jury may have led the jury to believe that it could
find the Defendant Sumrall negligent on some unsupported general
theory of negligence. We have reviewed the district court's charge
to the jury and conclude that it accurately reflects applicable
law. In addition, we do not believe that the order of the
instructions created any risk of confusion. "Trial courts are
accorded great latitude in shaping instructions, and a verdict
based judgment will be reversed because of an erroneous instruction
only when the charge as a whole leaves us with substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations." Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th
Cir.1986) (citations omitted). We have no such doubt in this case.
11
The defendants also cite the fact that the district court
read stipulated facts contained in the pre-trial order to the jury
at the beginning of the trial. To the extent that such stipulated
facts were not relevant to the issues to be tried, their submission
to the jury would seem to be contrary to Federal Rule of Evidence
402, which provides that "[e]vidence which is not relevant is not
admissible." However, we do not believe that any of the stipulated
facts created a substantial risk of confusion or prejudice.
Therefore, we find that the district judge did not abuse his
discretion in denying the defendants' motion for new trial on this
basis.
3. EXCESSIVE DAMAGES/REMITTITUR
The defendants also contend that the jury's award of punitive
damages is excessive and that they are entitled to a new trial on
damages or a remittitur of the jury verdict. The district court
properly instructed the jury on punitive damages, and the jury
awarded the plaintiff $1,500,000.00. On defendants' motion for new
trial or remittitur, the district court held a hearing to review
the award for excessiveness and applied the factors provided by
Alabama substantive law.10 The district court fully considered the
prescribed factors and held that the award was not excessive under
Alabama law. The district court's decision in this regard is
accorded considerable deference and should not be reversed absent
an abuse of discretion. Browning-Ferris Indus. of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 279-80, 109 S.Ct. 2909, 2922,
10
See Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).
12
106 L.Ed.2d 219 (1989). Applying this standard of review, we find
no error.
ABSTON'S VICARIOUS LIABILITY
In addition to the arguments applicable to both defendants,
Defendant Abston contends that he cannot be held liable for
Defendant Sumrall's actions. This argument requires us to review
both questions of law and findings of fact.
First, Abston argues that, as a matter of law, he cannot be
held liable for Sumrall's actions under the doctrine of respondeat
superior because federal regulations required Defendant Mason, as
the lessee of the truck, to have "exclusive possession, control,
and use" of the tractor-trailer provided by Abston.11 Indeed, the
lease, and the controlling federal regulations, provide the basis
for Defendant Mason's liability in the present case. In Simmons v.
King, this court recognized that the lessee's liability under such
a lease12 is not governed by the common law doctrine of respondeat
11
The Federal Motor Carrier Leasing Regulations governed the
lease entered into by Abston and Mason. Section 1057.12 of those
regulations states, in relevant part:
(c) Exclusive possession and responsibilities—
(1) The lease shall provide that the authorized carrier
lessee shall have exclusive possession, control, and
use of the equipment for the duration of the lease.
The lease shall further provide that the authorized
carrier lessee shall assume complete responsibility for
the operation of the equipment for the duration of the
lease.
49 C.F.R. § 1057.12.
12
In Simmons, as required by federal regulation, the lease
provided
13
superior. Simmons, 478 F.2d 857, 867 (5th Cir.1973). Instead, the
assumption of responsibility required by the federal regulations
made the loaned driver the statutory employee of the lessee, and
rendered the lessee vicariously liable as a matter of law. Id.
We also held in Simmons that the legal responsibility of the
lessee mandated by the federal regulations did not preclude the
lessor's liability under common law standards of control. Id.
This is not as incongruous as might be supposed. ICC can
mandate a positive legal responsibility which we uphold in the
only way it would be meaningful—to give protection to the
injured member of the public[.] At the same time [the lessor]
has, or may have, a practical control over [the driver] of a
kind which would allow it to obtain an automatic insulation
from liability from the mere terms of a lease between two
parties.
Id. Therefore, to determine whether Defendant Abston may be held
vicariously liable under the circumstances presented, we must first
look to the applicable state law.
The district court held that Mississippi law would be applied
to the determination of this issue and this ruling has not been
appealed. Although the Mississippi courts have used multi-factored
tests to determine vicarious liability in different contexts, it
also has held that the core issue is whether the employer had
sufficient control that he ought to be held liable for the
negligent acts of the "employee". See Fruchter v. Lynch Oil Co.,
It is understood that the leased equipment under this
agreement is in the exclusive possession, control and
use of the authorized carrier Lessee and that the
Lessee assumes full responsibility in respect to the
equipment it is operating, to the public, the shippers
and the Interstate Commerce Commission.
Simmons, 478 F.2d at 862 n. 13.
14
522 So.2d 195, 198 (Miss.1988).
The Mississippi courts have not addressed the application of
the doctrine of respondeat superior to a situation like this one
where a trip-lease purports to vest exclusive control over the
equipment in a third-party lessee. However, we have no reason to
conclude that the Mississippi court would allow an employer to
avoid vicarious liability by operation of such a contract while
retaining de facto control of the employee. Therefore, we hold
that under Mississippi law, an employer can be subject to vicarious
liability based on a right or power to control an employee's
actions despite the intervention of a written equipment lease that
purports to vest exclusive control in a third-party lessee.
Since we find that the vicarious liability claim against
Defendant Abston is not precluded by federal law or Mississippi
state law, we must consider the relevant facts and review the
district court's rulings on this issue. Abston testified that
Sumrall was working for him and was loaned to Mason for the purpose
of delivering specific cargo. Sumrall testified that he considered
Abston his boss. After the accident, Sumrall telephoned Abston to
report the accident and to obtain permission to complete the
scheduled trip. In addition, it is clear that Sumrall's activity
was in furtherance of Abston's business.
With these facts in mind, and in light of the law discussed
above, we do not hesitate to affirm the district court's rulings.
Clearly, these facts are sufficient to justify the district court's
denial of Abston's motion for summary judgment. In other words, we
15
agree that there existed a genuine issue of material fact with
regard to Abston's control of Sumrall. Likewise, we affirm the
district court's denial of Abston's motion for judgment as a matter
of law because the jury's finding with regard to Abston's liability
is more than sufficiently supported by the evidence.
CONCLUSION
After carefully reviewing the alleged errors raised by the
defendants, we are of the opinion that all of them are without
merit. Accordingly, the judgment of the district court is
AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
I can think of nothing more "foreseeable" than the fact that
if you drive with only one headlight working (which is negligence
per se under Alabama Law) at 10:00 p.m. at a speed above the
maximum speed limit, and are inattentive to the road in front of
you, you may run into the rear of a slower moving vehicle. Since
the jury found that Hiltgen's decedent was negligent in one or all
of the assumed respects, I think we are quibbling over
technicalities to try to distinguish between factual or legal
causation. If the collision would not have occurred "but for" the
negligence of Hiltgen's decedent, as the panel majority concedes,
then in my view such negligence was certainly a cause of the
collision; and the circumstances of foreseeability in this case
are so clear that I would hold such cause to be a legal cause.
Every safe driving course taught in every high school and
every defensive driving course given to adults instructs over and
16
over again that the greatest danger in driving at night is
"overdriving your lights," i.e., driving at a speed which prevents
you from stopping in the visible distance ahead. I would hold
therefore, as a matter of law, that each driver on the federal
interstate highway system owes a duty to all other drivers to drive
at a speed which permits him to stop his vehicle in the visible
distance ahead. Even plaintiff's expert in this case recognized
this duty which arises out of the common sense recognition of the
many occasions in which road conditions (ice, snow, pavement
breakup repair work), slow moving traffic (farm tractors and
equipment), wild animals (deer), road debris (lost loads), and
vehicles damaged in prior collisions can create hazards which
require a driver to be able to bring his vehicle to a safe stop or
turn and avoid collision. Both of those curative actions are a
function of response time; and response time is a function of
visibility, and visibility is a function of lighting, and at night
hazards may not always have lights on them. That such occasions
may be "unexpected" does not make them "unforeseeable."
Furthermore, on a divided interstate freeway with two lanes
for vehicles' proceeding in the same direction, the ability to
change lanes quickly is a safety factor which permits faster moving
traffic to avoid and pass slower moving traffic. Consequently, if
one chooses to drive on our interstate freeways at or over the
speed limit, the safer place to be is in the left hand lane because
slower moving, entering traffic must enter the right lane from the
right and departing traffic must slow down in the right lane to
17
exit on the right. Highway signs generally instruct slow moving
traffic to use the right lane. The collision in this case occurred
in the right hand lane, the lane in which entering traffic can be
expected to be going at a slower rate than other traffic, and at a
point approaching an exit off the freeway.
The test of whether negligence is a proximate (legal) cause of
injury is a function of the scope of the duty, not whether the
negligence in question is the act of the plaintiff or the
defendant. If, for instance, in this case, the positions and
activities of the two vehicles and the negligence of their drivers
were exactly reversed, so that the truck, which is proceeding
without one headlight at a speed above the maximum truck speed
limit, collides with the rear-end of the Hiltgen automobile, which
is proceeding at 30 miles per hour in the right lane with its
lights off, would anyone seriously contend that a jury finding that
the negligence of the truck driver was not a proximate cause of the
collision was supportable under the facts? I think not. The jury
just let their sympathies override their reason in answering the
causation questions regarding the plaintiff's contributory
negligence. That a contributory negligence holding would result in
Hiltgen being unable to recover under the law of Alabama, may be an
argument for comparative fault; but it is no justification for
"hair splitting" over what is a legal cause and what is not a legal
cause.
The only evidence upon which the jury could rationally have
based its decision that Hiltgen's contributory negligence was not
18
a proximate cause of this accident was the testimony of plaintiff's
expert, Langley. But the trial judge correctly characterized
Langley's testimony as "unsupported and incompetent" and
sufficiently prejudicial to entitle defendants to a new trial.
Regrettably, the trial judge backed down on his initial
determination to grant a new trial; and therein I think the trial
judge erred. Simply because a timely objection was not made as to
the admissibility of Langley's conclusions does not cure the
inherent inaccuracy of such expert's testimony. You can't make a
silk purse out of a sow's ear just by not objecting.
I think the jury's finding of "no proximate cause" as to the
contributory negligence of Hiltgen is just plain "wrong and unjust"
and I would REVERSE and REMAND for a new trial. See King Coal Co.
v. Garmon, 388 So.2d 886 (Ala.1980).
19