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Posted July 11, 2012 | comments Leave a comment

Truck company in fatal crash asks judge to toss jury verdict

By Sally Voth - svoth@nvdaily.com

A trucking company and its driver found liable in U.S. District Court in the deaths of three men in an April 2009 crash on Interstate 81 in Shenandoah County are asking a judge to throw out the verdict.

Last month, a jury found Arkansas-based Pat Salmon & Sons Inc. and driver John Joseph Banik, of Coldwater, Miss., were negligent in the crash that took the lives of Hilario Guox Vicente, 27, and Ramiro Vicente-Ajun, 35, who were both from Edinburg, and Brighton, Tenn., resident Dennis Lavelle Fayne, 50.

Just prior to the fatal crash, Banik's tractor-trailer had collided with another tractor-trailer driven by William Michael Fewell, of Bedias Texas, who was working for C. Bean Transport Inc., of Amity, Ark. Jurors didn't find the latter negligent.

Pitt Ohio and Miller were originally suing the drivers and companies for $2.175, which would recoup the amounts paid out in a settlement with the victims' families. They later amended their suit to seek $1.7 million instead.

Miller's truck collided with a Hyundai carrying Vicente and Vicente-Ajun, and Fayne, who had gotten out of Banik's truck following the original collision, was then struck.

U.S. District Judge Michael F. Urbanski agreed to postpone entering a judgment on June 26, at the request of Salmon & Sons and Banik, who were concerned about a 30-day appeal window.

Late in the day on Tuesday, they filed a motion asking Urbanski to set aside the verdict, and if he's unwilling to do that, to set a new trial.

"...The jury's verdict against Defendants was both unsupported by the evidence presented at trial and against the weight of the evidence," the motion states. "As a result, Defendants are entitled to a judgment not withstanding the verdict, or in the alternative, a new trial."

Before this lawsuit went to trial, the parties all agreed that the three men had died due to blunt force trauma, the motion states, but adds there was no evidence at trial saying the defendants caused the trauma or that Banik's truck struck the car's passengers.

"Furthermore, even if Mr. Banik was arguably negligent by allowing the Pat Salmon vehicle to be temporarily stopped on the highway prior to the second accident, such action was at worst merely passive negligence to Mr. Miller's active negligence in operating the Pitt Ohio vehicle in such a manner as to fail to ever see the passenger car prior to impact, run over the top of it and into its passenger compartment, causing the car to ignite and catch fire, killing its two occupants, and to subsequently strike the rear of the Pat Salmon trailer," it states.

The fatal collision came within five to 10 seconds of the one between Banik's and Fewell's trucks, and Banik turned on his emergency flashers and tried to move the tractor-trailer, but the engine either was stalled or not working, the motion states.

A witness's deposition states the Hyundai had passed his tractor-trailer at a high rate of speed and had cut him off before doing the same to Banik's truck and then braking hard.

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