The opinion
HART, J., dissenting.
[ 12On direct appeal, the majority reverses the circuit court’s granting of a new trial to Burton Lee, holding that the court manifestly abused its discretion. On cross-appeal, the majority holds that the court did not abuse its discretion in excluding an admission of fault made by one of the employees of W.E. Pender & Sons, Inc. I disagree with both conclusions.
Direct Appeal. The grant of a new trial is reversed only if the circuit court clearly or manifestly abused its discretion by acting improvidently or thoughtlessly without due consideration. Carlew v. Wright, 356 Ark. 208 , 148 S.W.3d 237 (2004). Here, the record reflects that the trial judge conducted a lengthy hearing in which he personally questioned the defense’s star witness, Jonathan McGinty, about McGinty’s revelation that his testimony at trial was inaccurate. Only then did the trial judge order a new trial. I submit it is impossible to assert that the trial judge ruled thoughtlessly without due consideration.
We may affirm the circuit court’s decision if there is a sound basis for the result reached by the court. Regions Bank v. Griffin, 364 Ark. 193 , 217 S.W.3d 829 (2005). Rule 59(a) allows the granting of a new trial for “any irregularity in the proceeding ... by which the party was prevented from having a fair trial,” and when the jury’s verdict is “clearly contrary to the preponderance of the evidence.” Here, Lee was prevented from having a fair trial, and further, the verdict was clearly contrary to the evidence, so the court’s grant of a new trial should be affirmed.
113The majority acknowledges that McGinty testified at the hearing on the motion for new trial that his testimony at trial regarding the movement of the truck was inaccurate. Instead, he had relied on what he was told by others, either the person who witnessed the accident, or the owner of the company, or the company’s attorney. This evidence, and McGinty’s post-trial admission that he gunned the engine — which was contrary to his trial testimony — goes to the essence of the case: what happened when the accident occurred. The majority speculates that the presentation of truthful testimony rather than untruthful testimony about the movement of the truck would not have changed the result of the trial. This conclusion may be acceptable to the majority, but I doubt the presentation of untruthful testimony would be acceptable to a jury. Nor is it acceptable to this dissenting judge. This cannot be anything other than an irregularity that prevented a fair trial.
Furthermore, the verdict was clearly contrary to the evidence. A four-by-eight foot, 110 pound, fiberglass mat, designed to give traction in mud, spun out from underneath the right rear tire of the truck and struck Lee in the legs, causing him injury. McGinty testified at trial that he put his foot on the brake, released the air brakes, “real gently” released the clutch until he felt the transmission catch, “gently” released the brake so that the truck would not roll forward, gave the truck “a little bit” of acceleration, held “a steady accelerator,” and continued to release the clutch trying not to spin the tires.
| uThe majority and the jury have concluded that — contrary to the laws of physics' — a four-by-eight foot mat, weighing 110 pounds — without any appreciable force from a spinning tire — can be inexplicably ejected from underneath the dual wheel of a 23,000 pound single rear-axle truck, fly through the air several feet, careen into a tree, and still have sufficient force to ricochet in a different direction several feet and strike a bystander with enough force to break his leg. The only force that could have been applied came from the force generated by the driver accelerating the truck motor and increasing the torque of the truck wheel, a force exclusively controlled by McGinty. Although we may not be physicists, common sense dictates that the force necessary to propel this heavy mat through the air to effect this result was many times greater than that testified to by McGinty. Accordingly, I conclude that granting of a new trial was proper, as the jury’s verdict was clearly contrary to the evidence.
Cross-Appeal. Lee cross-appeals from a pre-trial ruling that excluded a statement made by McGinty during his deposition. During the deposition, McGinty was asked whether Lee had ever said to him whether or not the accident was or was not anyone’s fault. McGinty replied, “Well, it was our fault.” The court excluded McGinty’s statement, concluding that it “invades the province of the jury.” Lee argues that the circuit court abused its discretion in excluding this testimony.
Rule 701 provides that a lay witness’s testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (1) Rationally based on |lflthe perception of the witness; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.” Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Thompson v. Perkins, 322 Ark. 720 , 911 S.W.2d 582 (1995). Further, Rule 704 provides that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” But while opinion testimony may embrace the ultimate issue to be decided by the trier of fact, it cannot mandate a legal conclusion or tell the jury what to do. Marts v. State, 332 Ark. 628 , 968 S.W.2d 41 (1998).
In concluding that the testimony on fault invaded the province of the jury, the circuit court failed to consider the applicable law. The court should have considered whether McGinty’s deposition testimony was based on his observed facts. Further, the court should have considered whether the statement would have been helpful and aided the jury in determining a fact in issue, that is, negligence, especially in light of the fact that McGinty testified that he used only “a little bit” of acceleration on the truck. Further, the court should have considered whether the testimony would have mandated a legal conclusion, that is, whether Pender was negligent. See Thompson, supra (holding there was no abuse of discretion in allowing testimony regarding the right-of-way in a motor-vehicle accident, as the testimony was based on observed facts, did not mandate a legal conclusion, and was helpful to the determination of a fact in issue).
With regard to the question of whether McGinty’s testimony on fault would have 11 (,mandated a legal conclusion, I observe that the jury was instructed that negligence means “the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do.” The jury was also instructed that a “failure to exercise ordinary care is negligence,” that “ordinary care” meant “the care a reasonably careful person would use,” and that it was for the jury “to decide how a reasonably careful person would act.” While the majority cites to Black’s Law Dictionary for the definition of “fault,” I do not see where in the record the jury was ever instructed that the term “fault” had any legal meaning, much less that it was the ultimate issue to be decided. Had McGinty, a fact witness, testified that he was negligent, then it would have been a closer question of whether he was testifying on the ultimate issue, as the jury was instructed on the definition of negligence. Gramling v. Jennings, 274 Ark. 346 , 625 S.W.2d 463 (1981) (holding that it was error to allow expert witness testimony that the defendant was not negligent). But that was not the testimony before the circuit court. Thus, the court should have considered whether McGinty’s testimony on “fault” mandated a “legal” conclusion at all, whether it mandated a legal conclusion on negligence, and whether it told the jury that it had to find negligence.
Accordingly, I would affirm on the direct appeal and reverse on the cross-appeal.
BAKER, J., joins.