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CLEO K. CLARK v. SAMUEL CRAIG VINIARD

AUGUST 30, 1989

CLEO K. CLARK
v.
SAMUEL CRAIG VINIARD, A MINOR, BY AND THROUGH HIS FRIENDS, LEGAL AND NATURAL GUARDIANS, DANNY RAY VINIARD AND DORIS VINIARD.



BEFORE ROY NOBLE LEE, C.J., ROBERTSON AND PITTMAN, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

Craig Viniard sustained a severe injury to his left leg when the motorcycle he was riding was involved in a collision with an

automobile. Viniard sued Cleo Clark, alleging that her negligence was a proximate cause of his injuries. A jury found in favor of Viniard, but awarded him no damages. Viniard moved for an additur, or in the alternative a new trial solely on damages. The trial judge considered this request, and ordered instead a new trial on all issues. Cleo Clark requested an order on certification for interlocutory appeal, which was granted by the trial court. This Court granted permission to appeal, and Cleo Clark assigns the following as error:

 I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A DIRECTED VERDICT OR J.N.O.V. IN FAVOR OF THE DEFENDANT.

 II. WHETHER THE TRIAL COURT HAD THE AUTHORITY AND/OR JURISDICTION TO GRANT A NEW TRIAL ON ALL ISSUES.

 III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE NEW TRIAL, ASSUMING THAT IT HAD THE AUTHORITY AND/OR JURISDICTION TO DO SO.

 Craig Viniard has cross-appealed, assigning as error:

 I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF, SAMUEL CRAIG VINIARD, AN ADDITUR OR A NEW TRIAL ON DAMAGES ONLY.

 II. THE JURY VERDICT ON THE ISSUE OF DAMAGES IN AWARDING PLAINTIFF, SAMUEL CRAIG VINIARD $0.00 IN LIGHT OF HIS MEDICAL EXPENSES TOTALLING $53,693.19 AND A MEDICAL EXPERT'S OPINION ASSIGNING A 20-30% PERMANENT PARTIAL DISABILITY TO HIS LEFT LEG WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 STATEMENT OF THE FACTS

 On August 5, 1983, at about 10:30 a.m., Craig Viniard was riding his XR-75 Honda motorbike in a westerly direction down General Robert E. Blount Drive, also known as Foote Street, in Bassfield, Mississippi. Because Viniard's bike was intended primarily for off-the-road use, it was not equipped with a headlight, brakelight, turn signals, or rear-view mirrors. As Viniard approached the intersection of Foote Street and Ida Avenue, he put out his left arm in order to signal for a left turn. As he began to make his turn, he collided with an automobile driven by Estes Townsend, who was headed in the same direction as Viniard and was also attempting a left turn. As a result of the accident Viniard received an extensive laceration of the left leg with a compound fracture. The doctor who first reached Viniard had to "unwind" the leg twice in order to feel a pulse in the foot. Viniard had to undergo sixteen surgical

 procedures as a result of his injuries.

 On July 1, 1986, Craig Viniard filed suit in the Circuit Court of Jefferson Davis County against Cleo Clark, alleging that Clark's negligence had been a proximate cause of his accident and resulting damages. Viniard alleged that Clark had been behind him in her car on the day of his accident, and that she had run into his bike from behind, knocking him into the path of the Townsend car. The complaint also alleged that Clark failed to stop after having caused the accident. The complaint asked for actual and punitive damages. Cleo Clark filed her answer on August 4, 1986. Clark maintained that she had never been at the scene of the accident, but had turned off of Foote Street north onto Jefferson Street and had headed home before reaching the intersection where the accident occurred. Alternatively, Clark alleged that Viniard was negligent in that he did not properly signal for his left turn onto Ida Avenue, that he was not old enough to have a driver's license or to be riding the bike on a public street, and that the Honda was not properly equipped to be operated on a public street.

 Several depositions were taken before the trial, including that of Stella Mae Hathorn, an alleged eyewitness to the accident, who was deposed on October 7, 1986. Other witnesses' testimony placed Cleo Clark driving her automobile in the area. No one other than ...


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