PHILLIP T. WHITEAKER, Judge.
This litigation involves a collision between a bicycle and a vehicle. John Sanson appeals a Saline County jury verdict awarding Marybeth Allinson $150,000 in damages for injuries she suffered when the bicycle she was riding collided with a vehicle being driven by Sanson. Sanson asserts three arguments on appeal. First, he argues that the trial court erred in denying his proffered jury instruction regarding a bicyclist's duty to signal prior to turning. Second, he argues that the trial court improperly denied his motion for mistrial based upon cumulative error. Third, he argues that the jury's award was excessive and, therefore, the trial court
For his first point on appeal, Sanson argues that the trial court erred in refusing to instruct the jury that Arkansas law required Allinson to signal her intent to make a left-hand turn continuously for a distance of one hundred feet prior to making the turn. The facts relevant to this instruction were as follows: Allinson was riding a bicycle on Nutter Chapel Road in Conway, Arkansas. Sanson was driving a vehicle behind her. When they approached the intersection of TJ Drive, Allinson looked behind her, moved to the right of the lane, and signaled a left-hand turn. Sanson attempted to pass Allinson on the left. As Allinson attempted to make a left-hand turn, Allinson's bicycle collided with the passenger side of Sanson's vehicle, causing injury to Allinson. The parties disagreed on whether Allinson provided a sufficient and timely signal indicating her intent to make a left-hand turn.
Sanson proffered the following instruction:
The trial court denied the proffered instruction because of the third provision.
The trial court did not err in refusing the proffered instruction because it was an incorrect statement of the law. As a matter of law, litigants are entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support it. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). Here, the trial court found that the third provision of the proffered instruction was not a correct statement of the law in that Arkansas Code Annotated section 27-51-403(b) did not apply to bicycles.
Arkansas Code Annotated section 27-51-403(b) states that a signal indicating a turn should be continuously given not less than "the last one hundred feet (100') traveled by the vehicle" before changing lanes or turning. Ark.Code Ann. § 27-51-403(b) (Repl.2010). This statute and the distance requirement of signaling intention applies to vehicles. A vehicle is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks." Ark.Code Ann. § 27-49-219 (Supp.2013). Allinson was riding a bicycle, a device moved by human power. Based upon this, we find no error in the court's refusal of the proffered instruction.
Sanson argues that the court erred in its conclusion because Arkansas Code Annotated section 27-51-403(b) must be read in conjunction with Arkansas Code
For his second argument, Sanson asserts that the circuit court erred when it denied his motion for a mistrial based on cumulative error. An appellant asserting a cumulative-error argument must show that there were individual objections to the alleged errors, that the cumulative error objection was made to the trial court, and that a ruling was obtained. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). He must also prove that errors actually occurred, because this court does not recognize the cumulative-error doctrine when there is no error to accumulate. See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995).
The first alleged error occurred when the trial court allowed counsel to question the investigating officer regarding traffic laws and their applicability to the facts of this case.
The second alleged error occurred during closing arguments when counsel for the appellee argued to the jury that Sanson was negligent in passing Allinson on a double-yellow line and in an intersection. Sanson asserts that this argument was not based on any jury instruction and, when coupled with the court's previous error, so clouded the legal issues that a mistrial was appropriate.
Our supreme court has repeatedly held that mistrial is a drastic remedy that should only be granted (1) when there has been error so prejudicial that justice could not be served by continuing the trial or (2) when the fundamental fairness of the trial has been manifestly affected. J.E. Merit
Here, the trial court admitted error with respect to the questioning of the officer and even provided a curative instruction. However, Sanson fails to prove that the trial court committed any error during closing arguments. During closing arguments, counsel for Allinson reminded the jury that Sanson had admitted in his testimony that it was not safe to pass on a double-yellow line or in an intersection. Counsel then argued there was evidence that Sanson had done just that — that he had passed Allinson's bicycle on a double-yellow line or in the intersection. Despite Sanson's assertions to the contrary, this argument was based on Sanson's admissions, common sense, and the duty to exercise ordinary care for their own safety and the safety of others. As such, counsel's arguments in this regard did not amount to error. Without this error, there was no error to accumulate, and a mistrial was not warranted.
Sanson's final argument is that the jury award was excessive, and the trial court erred in denying his motion for new trial on that basis. He asserts that the evidence at trial revealed that Allinson sustained a fractured arm requiring her to wear a sling for three and a half weeks. Her physical therapy and medical bills totaled only $8,358.22. She missed five days of work and lost approximately $700-$900 in income. She received no disability or impairment rating and there was no evidence of the need for future treatment. He notes that Allinson was able to complete her postgraduate degree with a 3.75 G.P.A. and obtain full-time employment in her field. He argues that, under these facts, a $140,000 award for pain and suffering was clearly excessive. We disagree.
Arkansas Rule of Civil Procedure 59(a)(5) provides that error in the assessment of recovery, whether too large or too small, is a proper basis for granting a new trial. See Garrett v. Brown, 319 Ark. 662, 666-67, 893 S.W.2d 784, 787 (1995) (citing Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994)). In reviewing the adequacy of a jury's award, this court will sustain the trial court's denial of the motion for new trial unless there is a clear abuse of discretion. Id. Where an award of damages is alleged to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock the conscience of the court or demonstrates passion or prejudice on the part of the jury. Vaccaro Lumber v. Fesperman, 100 Ark.App. 267, 267 S.W.3d 619 (2007).
In determining whether the amount of damages is so great as to shock the conscience of this court, we consider such elements as past and future medical expenses, permanency of the injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Id. We make this determination on a case-by-case basis with little reliance on prior decisions, as "precedents are of scant value in appeals of this kind." Id. at 269, 267 S.W.3d at 622 (quoting Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983)).
The jury's award was not excessive. While not life-threatening, there was sufficient
Affirmed.
HIXSON and BROWN, JJ., agree.