Opinion
No. 25275.
April 23, 1968.
Howard Waldrop, Atchley, Russell, Hutchinson Waldrop, Texarkana, Tex., for appellant.
Bird Old, Jr., Mount Pleasant, Tex., Harry B. Friedman, Harkness, Friedman Kusin, Texarkana, Tex., for appellee.
Before THORNBERRY, AINSWORTH and DYER, Circuit Judges.
While attempting to pass an automobile in front of him, appellant Privett collided with an automobile driven by the minor appellee's father, Sam F. Dixon, who was approaching from the opposite direction either in its proper lane (as claimed by appellees), or across the middle line of the road in the wrong lane (as claimed by appellant). Judgment of $16,200.00 was entered against Privett upon a jury verdict in favor of appellees for the wrongful death of the minor's father and Privitt appeals. We affirm.
Not having moved for a directed verdict Privett cannot now challenge, as he attempts to do, the sufficiency of the evidence to support the verdict. E.g., Pennsylvania National Mutual Cas. Ins. Co. v. Nathan, 5 Cir. 1966, 361 F.2d 18, 20.
The evidence on when and how the crash occurred was in sharp conflict and presented a classical jury question. Considering the evidence adduced at trial on the weather, visibility, terrain, road and shoulder width and condition, the respective speeds of the oncoming, the passed and the passing vehicles, the trial court correctly submitted to the jury the questions of whether Privett was operating his automobile at an excessive rate of speed under the circumstances and, if so, whether this was a proximate cause of the accident.
Finally, Privett's motion for a new trial, principally on counsel's affidavit on information and belief of jury misconduct, was properly denied. Complete Auto Transit, Inc. v. Wayne Broyles Engineering Corporation, 5 Cir. 1965, 351 F.2d 478; Eagle Lake Improvement Co. v. United States, 5 Cir. 1947, 160 F.2d 182, cert. denied, 332 U.S. 762, 68 S. Ct. 64, 92 L.Ed. 347; Morgan v. Sun Oil Co., 5 Cir. 1940, 109 F.2d 178, cert. denied, 310 U.S. 640, 60 S.Ct. 1086, 84 L. Ed. 1408.
Affirmed.