COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72839 LAURA THOMAS, ET AL., : : Plaintiffs-Appellees : JOURNAL ENTRY : and vs. : OPINION : CHARLES VAUGHN, ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 314086 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Gilbert W.R. Rucker, III 123 Pine Avenue, S.E. Suite 203 Warren, Ohio 44481 Laura M. Thomas, Pro Se 3527 Woodridge Road Cleveland Heights, Ohio 44121-1533 For defendants-appellants: John F. Burke MANSOUR, GAVIN, GERLACK & MANOS 2150 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellants, Charles Vaughn and G & M Towing, appeal the trial court's grant of appellees', Laura Thomas and Donald Thomas, motion for a new trial after a jury verdict in favor of appellants on appellees' complaint for damages following an automobile accident in which Vaughn struck Laura Thomas' car in the intersection of East 36th Street and Superior Avenue. At trial, the evidence indicated that on January 17, 1995 at approximately 8:30 a.m., Laura Thomas was traveling northbound on East 36th Street. As Thomas crossed Superior Avenue, Vaughn, traveling westbound on Superior Avenue in a pick-up truck owned by his employer G & M Towing, struck the right rear side of Thomas' vehicle, spinning both vehicles into a pole on the northwest corner of the intersection. Laura Thomas testified that she crossed the intersection with a green light. Vaughn testified that he went through the intersection, with a green light and did not see Thomas until he hit her. Harland Johnson, a motorist who preceded Thomas through the intersection, testified that Thomas must have had a green light because he went through the intersection with a green light. The jury returned a general verdict in favor of appellants and answered the following interrogatory in the negative: Was the Defendant Charles Vaughn negligent? In granting appellees' motion for a new trial, the trial court wrote that [T]he evidence in this case clearly showed negligence on the part of Vaughn, with no evidence of negligence on the part -3- of Plaintiff [Laura Thomas], and that the verdict was against the manifest weight of the evidence. In determining that the verdict was against the manifest weight of the evidence, the trial court relied upon the facts that: 1) Laura Thomas unequivocally testified that she entered the intersection under a green light; 2) Vaughn struck the right rear portion of Laura Thomas' car; 3) photos of the damage indicated that in another split second Plaintiff would have cleared the intersection and would have completely avoided being hit by Defendant's car ; 4) Vaughn testified that he did not see Laura Thomas' car until it was in the middle of the intersection; and 5) Harland Johnson testified that Plaintiff must have had the green light because he went through the intersection ahead of Laura Thomas. The trial court determined that the jury erred by returning the first interrogatory in the negative, explaining: While the jury may have concluded that both drivers were to blame to some degree, depending upon a number of considerations not known to us, it was manifestly against the weight of the evidence to conclude that Defendant was blamelessand thus that Plaintiff caused the accident. -4- It was apparent to this Court that the jury either did not understand the Court's charge, or chose to ignore it. (Emphasis sic.) Appellants' assignments of error read: I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFFS' MOTION FOR A NEW TRIAL BECAUSE THE COURT IMPERMISSIBLY CONDUCTED A WEIGHING OF THE EVIDENCE AND AN ASSESSMENT OF THE CREDIBILITY OF THE WITNESSES. II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING PLAINTIFF-APPELLEES (SIC) MOTION FOR NEW TRIAL WHEN IT USURPED THE JURY'S FUNCTION AS FACT FINDER. Appellants argue that the court abused its discretion by ordering a new trial because it impermissibly substituted its assessment of the credibility of the witnesses for the jury's and that the jury's verdict was supported by sufficient and credible evidence and could not be disturbed. Civ.R. 59(A) provides in part: (A) Grounds A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: *** (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; *** In Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685, the syllabus reads: 1. Where a trial court is authorized to grant a new trial for a reason which requires the exercise of a sound discretion, the order granting a new trial may be reversed only upon a showing of abuse of discretion by the trial court. -5- In Rohde, the court stated that in examining a motion for new trial based upon the sufficiency of the evidence: [T]he trial court, in determining such question, must review the evidence and pass on the credibility of the witnesses; not in the sense that such weight and credibility is passed on originally by the jury, but in the more restricted sense of whether it appears to the trial court that a manifest injustice has been done, and that the verdict is against the manifest weight of the evidence. Id., 23 Ohio St.2d at 92, 262 N.E.2d at 691. In Krejci v. Halak (1986), 34 Ohio App.3d 1, 516 N.E.2d 235, the syllabus reads: 1. When a trial court grants a new trial on the ground that the evidence does not support the jury's verdict, such action rests within the discretion of the trial court; and when the trial court's decision involves questions of fact, the appellate court should view the evidence favorably to the trial court's action rather than to the original jury's verdict. (Civ.R. 59, applied.) In light of the standard applied by an appellate court in reviewing a trial court's decision on a motion for new trial, the Franklin County Court of Appeals noted: Nonetheless, a trial court may not set aside a jury verdict upon the weight of the evidence based upon a mere difference of opinion with the jury; doing so constitutes an abuse of discretion by the trial court. [Rohde, supra], at 92, 52 O.O.2d at 381, 262 N.E.2d at 691. The jury's function is to weigh the evidence in the first instance, and a trial court may not usurp that function. Id. Thus, while the appellate court must give deference to a decision of the trial court respecting the weight of the evidence, the appellate court must also conduct an inquiry sufficient to ensure that the trial court has not encroached on the jury's factfinding function. Bland v. Graves (1993), 85 Ohio App.3d 644, 650, 620 N.E.2d 920, 923. Miller v. Paulson (1994), 97 Ohio App.3d 217, 224-25, 646 N.E.2d 521, 525-26. -6- In this case, the trial court relied on an unequivocal statement by Laura Thomas that she entered the intersection under a green light, the testimony of Harland Johnson, photographs which were never presented to the court or jury or admitted into evidence, and its own analysis of the accident in granting appellees' motion. The trial court concluded that the jury's verdict was impermissible because Vaughn could not be blameless. Because the trial court determined that Vaughn must have been to blame, it must have determined that Laura Thomas was in the intersection lawfully, i.e., that she entered the intersection while the controlling traffic signal was green or yellow. However, if the jury determined that Thomas was not in the intersection lawfully, i.e., that she ran a red light, then the jury could find that Vaughn was not negligent and hence, blameless. We find that in overturning the jury's verdict, the court intruded on the factfinding function of the jury and impermissibly disregarded competent and credible evidence which supports the jury's verdict. We note first that the trial court disregarded Vaughn's testimony that he went through the intersection with a green light and accepted without question Thomas' assertion that she entered the intersection with a green light. This factual issue is for the jury to determine, not the court. See, e.g., Miller, 97 Ohio App.3d at 227-28, 646 N.E.2d 527. In its analysis of the facts supporting its decision to grant a new trial, the court relied on Johnson's testimony that he went through the intersection under a green light. However, Johnson's -7- testimony was impeached on cross-examination. Johnson testified at deposition that he did not stop prior to crossing Superior Avenue; but at trial he insisted that he was stopped by a red light before he went through the intersection. Accordingly, the jury could disregard Johnson's story that he had waited at the light before crossing Superior Avenue. If Johnson did not stop prior to going through the intersection, his conclusion that Thomas must have had a green light was subject to scrutiny by the jury and it could have determined that the light had changed before Thomas crossed Superior Avenue. In this case, the jury had sufficient and credible evidence to determine that Thomas did not lawfully enter the intersection and to find that Vaughn was not negligent. Accordingly, the trial court's analysis of the facts, based upon a determination that Thomas was lawfully in the intersection, is an impermissible substitution of its opinion for that of the jury's. Accordingly, we find that the jury's verdict is not against the manifest weight of the evidence. Appellant's assignments of are well taken. The trial court's grant of appellees' motion for new trial is reversed and the jury's verdict in favor of appellants is reinstated. Judgment reversed. -8- This cause is reversed for proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA PRESIDING JUDGE MICHAEL J. CORRIGAN, J., CONCURS. KARPINSKI, J., DISSENTS. (See attached Dissenting Opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72839 LAURA THOMAS, ET AL., : : : Plaintiffs-Appellees : : DISSENTING v. : : OPINION CHARLES VAUGHN, ET AL., : : : Defendants-Appellants : DATE: NOVEMBER 12, 1998 KARPINSKI, J., DISSENTING: I respectfully dissent. The majority opinion emasculates Civ.R. 59(A)(6), which establishes weight of the evidence as grounds for granting a new trial.1 On these grounds the Supreme Court of Ohio reversed an appellate court which, like the majority, reversed a trial court's grant of a new trial. Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440. The Court summarized the standard governing review of orders granting a new trial on weight of the evidence grounds as follows: In evaluating the propriety of the trial court's decision premised on the weight of the evidence, we must 1 The majority opinion ignores completely, the alternative basis for the trial court's new trial ruling that the jury failed to follow its instruction. -2- note that a reviewing court can reverse such an order for a new trial only upon a finding of an abuse of discretion. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 52 O.O.2d 376, 262 N.E.2d 685, paragraph one of the syllabus. Abuse of discretion connotes an unreasonable, arbitrary or unconscionable attitude upon the part of the court. Poske v. Mergl (1959), 169 Ohio St.70, 75, 8 O.O.2d 36, 39, 157 N.E.2d 344, 348, citing Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855; Klever v. Reid Bros. Express, Inc. (1951), 154 Ohio St. 491, 43 O.O. 429, 96 N.E.2d 781. In addition, the abuse of discretion standard requires a reviewing court to view the evidence favorably to the trial court's action rather than to the original jury's verdict.Rohde, 23 Ohio St.2d at 94, 52 O.O.2d at 382, 262 N.E.2d at 692. This deference to a trial court's grant of a new trial stems in part from the recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the surrounding circumstances and atmosphere of the trial. Rohde, 23 Ohio St.2d at 94, 52 O.O.2d at 382, 262 N.E.2d at 692. Id. at 448. (Emphasis added.) It is well established under this abuse of discretion standard that reversal is not warranted simply because appellate judges disagree with the trial judge or believe the trial judge committed an error. Rather, to constitute a reversible abuse of discretion, the trial court's ruling: must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. As in Malone, the trial court's ruling granting a new trial in this case did not satisfy this stringent standard. The trial judge wrote a lengthy four-page typewritten opinion explaining his reasons for granting a new trial. The judge noted that in most trials involving intersection collisions each party -3- claims the right of way and neither party presents testimony from inde f an independent third who drove through the intersection under a green light justpendent eye wi before plaintiff. There was undisputed physical evidence, moreover, that defendant struck the right rear of plaintiff's vehicle, just before she cleared the intersection.2 Finally, although at trial defendant stated he had the green light, he never stated in his report to his own employer that he had the green light, he maintained that he saw it from under a railroad underpass 100 or 200 feet away, and he never saw plaintiff until he hit her. The majority contends the trial judge usurped the jury's function and improperly considered witness credibility when granting a new trial. However, this argument distorts the trial court's action. The trial judge did not purport to enter judgment for plaintiff as a matter of law or state that he would have come to a different conclusion if he were the trier of facts. Rather, he sought to avoid what his professionally trained and experienced judgment indicated was an unjust verdict. This was, in other words, one of those rare instances when the jury failed to properly perform the function entrusted to it by law. Under well established law, this was his determination, not ours, to make. 2 Plaintiff (Tr. 128) and defendant (Tr. 198) both testified to this fact. Although the trial court's opinion mentioned photos, no photos were introduced into evidence. While this reference to photos may constitute an error, it does not establish that the trial court abused its discretion by granting a new trial based on the undisputed testimony. Rhode, syllabus paragraph five. -4- The Supreme Court in Malone recognized this principle: It is also important to note that the order of a new trial does not terminate a case; instead, it simply grants a new trial. Unlike directed verdicts and judgments notwithstandingthe verdict, an order for a new trial does not dispose of litigation; instead, its purpose is to prevent `miscarriages of justice which sometimes occur at the hands of juries,' by presenting the same matter to a new jury. Rohde, 23 Ohio St.2d at 93, 52 O.O.2d at 382, 262 N.E.2d at 692, quoting Holland v. Brown (1964), 15 Utah 2d 422, 426, 394 P.2d 77, 79. Id. The majority's argument that the trial judge improperly considered credibility or weight of the evidence ignores that the entire function of a motion for new trial on weight of the evidence grounds is to permit the trial judge to consider the credibility of witnesses and weight of the evidence. Compare Civ.R. 59(A)(6) with Civ.R. 50(A)(4). By failing to view the evidence in the light most favorable to the trial court's action and by reinstating the jury verdict because it was supported by some evidence, the majority renders Civ.R. 59(A)(6) nugatory by transforming it into another sufficiency determination. Finally, the majority opinion is mistaken not only as to whether a trial judge may consider credibility and weight, and not only in its failure to view the evidence from the trial court's perspective, but also in its application of the standard of review to this case. As in Malone, even if one disagrees with the trial court's ruling, it was not an arbitrary or capricious abuse of discretion: In light of the standard of review and the policies underlying it, the trial court's order for a new trial -5- based upon weight of the evidence does not appear to be arbitrary or capricious ***. .