Ex parte Rollins

• Decision Date: 21 August 1981
• Citation: 403 So.2d 918
• Parties: Ex parte Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased. In re Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased, v. Michael William HANDLEY, Joseph P. LoBianco, and LoBianco Trucking Company, Inc., a Corporation. 79-791.
• Court: Alabama Supreme Court

Page 918

403 So.2d 918

Ex parte Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins,

Deceased. In re Roger ROLLINS, as Father and Next Friend of Joseph Ray Rollins, Deceased, v. Michael William HANDLEY, Joseph P. LoBianco, and LoBianco Trucking Company, Inc., a Corporation.

79-791.

Supreme Court of Alabama.

Aug. 21, 1981.

M. A. Marsal and Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for petitioner.

Richard W. Vollmer, Jr., and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Phillips & Killion, Mobile, for respondent Michael William Handley.

Jasper P. Juliano and William J. McDaniel of McDaniel, Hall Parsons, Conerly, Scott & Lusk, Birmingham, for respondents Joseph P. LoBianco and LoBianco Trucking Co., Inc.

EMBRY, Justice.

Petitioner, plaintiff below, Roger Rollins, in his action against Michael William Handley, Joseph P. LoBianco, and LoBianco Trucking Company, Inc., a Corporation, for the wrongful death of his minor son Joseph Ray Rollins, obtained a verdict and judgment against Handley. Judgment was entered upon a verdict in favor of defendants, LoBianco and LoBianco Trucking Company. Petitioner's motion for a new trial was denied and he took an appeal to the Court of Civil Appeals, 403 So.2d 914, which affirmed the judgment below.

We granted the writ of certiorari to review whether the trial court erred in refusing to give certain jury instructions as requested by petitioner and whether, as petitioner urges, we should overrule controlling Alabama cases, followed in the decision of the Court of Civil Appeals, which reject inadequacy of damages as a valid basis for granting a new trial in a wrongful death action.

Facts submitted by petitioner in his Rule 39(k), ARAP, statement on application for rehearing in the appellate court are of no aid in resolving the controlling issues before this court. Because of this we will not refer to those facts.

We adopt the following statement of facts from the opinion of the Court of Civil Appeals:

Joseph Ray Rollins, the fourteen-year-old son of plaintiff Roger Rollins, was killed in an automobile accident on June 21, 1977.

The accident occurred in Baldwin County, Alabama, at an intersection of U. S. Highway 31 and Alabama Highway 181. Both highways are non-limited access highways. Highway 181 is four-laned at the intersection while Highway 31 is two-laned with a turn lane. The intersection is controlled by stop signs on Highway 181.

The evidence showed that at the time of the accident the left lane of Highway 181 was blocked at the intersection by a disabled truck. The truck was loaded with pulpwood. Defendant Handley stated he approached the intersection and stopped behind the disabled truck and at least one other automobile. Upon determining that the traffic in the left lane was stalled, Handley moved into the right lane to proceed through the intersection. There was conflicting testimony as to whether Handley stopped at the stop sign before proceeding into the intersection, but it is uncontroverted that he had moved onto Highway 31 when his automobile was struck from the left by a tractor-trailer truck driven by the defendant LoBianco and owned by the defendant LoBianco Trucking Company, Inc.

The truck was deflected by the impact across Highway 31 and into an automobile which was parked at a roadside fruit stand. The automobile was pushed toward the fruit stand where it struck and killed the plaintiff's son.

For a more detailed recitation of these facts see Rollins v. Handley, (MS. June 4, 1980) 403 So.2d 914 (Ala.Civ.App.1980).

Regarding the allegation that the trial court erred in refusing to give jury charges requested by petitioner, respondents initially contend that inadequacy of damages is the sole question that Rollins may raise on appeal because he obtained a favorable jury verdict below. DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973). While we recognize this rule to be correct with respect to respondent, Handley, against whom the $5,000 verdict was rendered, we reject the assertion that it controls review of the verdict and judgment entered in behalf of LoBianco and LoBianco Trucking Company.

It is apparent the disputed jury charges concerned the LoBianco defendants. The trial court refused Rollins' requested charge regarding the prima facie speed limit of fifteen miles per hour when approaching and traversing an intersection where the driver's view is obstructed. According to Code 1975, § 32-5-91(b)(3), the statutory provision upon which Rollins based his requested charge, a driver's view is deemed to be obstructed when "at any time during the last 50 feet of his approach to such intersections he does not have a clear and uninterrupted view to such approach to such intersections and of the traffic upon all of the highways entering such intersections for a distance of 200 feet from such intersections."

The appellate court held that a vehicle stopped in a lane of traffic controlled by a stop sign does not comprise an obstruction of the driver's view of all traffic approaching the intersection for a distance of 200 feet within the meaning of the statute. This interpretation, Rollins contests. We do not consider it necessary to determine whether the disabled pulpwood truck would technically qualify as an obstruction under the statute, because we, like the appellate court, find no evidence in the record to support the conclusion that LoBianco's view of the approaches to the intersection was actually obstructed for a distance of 200 feet.

Rollins also alleges error in the trial court's refusal to give his written requested instruction qualifying the given "sudden emergency" instruction of defendants. Their charge reads as follows:

If a person, without fault of his own, is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation, ... but the standard of care required in an emergency situation is that care which a reasonably prudent person would have exercised under the same or similar circumstances.

In response to this "sudden emergency" instruction, Rollins requested the following charge:

The court charges the jury that the doctrine of sudden emergency does not apply to one who has wrongfully and voluntarily placed himself in such a dangerous position.

The trial court's denial of Rollins's requested explanatory instruction was not error. In Williams v. Worthington, 386 So.2d 408 (Ala. 1980), this court in considering the "sudden emergency" charge found that APJI Civil, 28.15, the same charge given by the trial court in this case, stated:

We note, and the parties agree, that the instruction given on the "sudden emergency" doctrine is a correct statement of the law.

Furthermore, the language of that instruction contains its own qualifying language, "without fault of his own," effectively conveying the same idea contained in Rollins's requested explanatory instruction.

We find no error in the trial court's refusal of plaintiff's requested jury instructions and affirm the judgment entered in favor of defendants Joseph P. LoBianco and LoBianco Trucking Company, Inc.

We now turn to Rollins's contentions concerning Handley and the verdict of $5,000 in behalf of Rollins and against Handley. Rollins, dissatisfied with this verdict, filed a motion for new trial claiming the damages assessed were inadequate in light of the evidence presented.

The motion was denied and on...