Campbell v. Burns
| Decision Date | 31 July 1987 |
| Citation | 512 So.2d 1341 |
| Parties | Rena S. CAMPBELL v. Jeff BURNS. 86-322. |
| Court | Alabama Supreme Court |
Thomas A. Woodall of Rives & Peterson, Birmingham, for appellant.
John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
A jury awarded $135,000 to Jeff Burns, a pedestrian involved in a collision with a motor vehicle driven by Rena S. Campbell, for personal injuries sustained in the motor vehicle-pedestrian collision. The case went to the jury with instructions on negligence, contributory negligence, and subsequent negligence. Ms. Campbell appeals. We affirm.
The two issues presented for review are:
1) Was there any evidence requiring an instruction on subsequent negligence?
2) Does the evidence clearly indicate that the jury verdict was wrong and unjust?
Subsequent negligence can be the basis of a recovery under a count charging simple negligence. However, there must be some evidence requiring an instruction on subsequent negligence. Owen v. McDonald, 291 Ala. 572, 285 So.2d 79 (1973).
"The elements of subsequent negligence are: (1) that the plaintiff was in a perilous position, (2) of which the defendant had actual knowledge, (3) that armed with such knowledge the defendant failed to use reasonable and ordinary care in avoiding the accident, (4) that the use of reasonable and ordinary care would have avoided the accident, and (5) that the plaintiff was injured as a result."
Treadway v. Brantley, 437 So.2d 93, 97 (Ala.1983).
The trial court gave Alabama Pattern Jury Instruction 28.07 ("Subsequent Negligence"), which is a correct statement of the law of subsequent negligence. This was timely objected to by defendant Campbell on the grounds that there was no evidence that she had actual knowledge that the plaintiff was in a position of danger; that there was no evidence that she had failed to use reasonable and ordinary care; that there was no evidence that she could have avoided the accident if she had used reasonable and ordinary care; that this was an emergency so sudden that there was no time to avoid the accident; and that the charge was not supported by the facts of the case.
The scintilla rule is the standard of evidence review that this Court must apply. Allstate Enterprises, Inc. v. Alexander, 484 So.2d 375 (Ala.1985).
Is there any evidence, or are there any logical inferences that can be drawn from the evidence, that Ms. Campbell had actual knowledge that Burns was in a position of peril? Reviewing the tendencies of the evidence most favorably to the prevailing party, as we are required to do, Mid-Continent Refrigerator Co. v. Fulton Grocery, Inc., 503 So.2d 1222 (Ala.1987), we conclude that there was.
There was evidence that Ms. Campbell saw Burns as he exited the door of the Drift In Lounge and had him in sight until the collision occurred; Burns "was walking slowly" and "wasn't moving real fast"; Ms. Campbell's automobile was 300 feet from Burns when Burns walked out in front of her. There is a scintilla of evidence that Ms. Campbell had actual knowledge that Burns was in a position of peril.
Is there any evidence that Ms. Campbell failed to use reasonable and ordinary care in avoiding the accident? Reviewing the tendencies of the evidence most favorably to Burns, we find there was. According to one witness, Ms. Campbell's car did not slow down at any time before the collision. Ms. Campbell testified that after she saw Burns she took her "foot off the gas." She knew that Burns was coming toward the street she was driving in. She did not sound her horn. She did not know how far she traveled with her foot off the accelerator pedal before she applied her brakes. Her vehicle hit Burns forcefully enough to knock him 50 to 70 feet, to break his leg, his pelvic bone, his shoulder in three places, his wrist, his fingers, and his ankle. There is a scintilla of evidence that Ms. Campbell failed to use reasonable and ordinary care to avoid the accident.
Is there any evidence that Ms. Campbell could have avoided the accident if she had used reasonable and ordinary care, or was this an emergency so sudden that there was not enough time for her to avoid the accident?
In Norwood Transportation Co. v. Bickell, 207 Ala. 232, 92 So. 464 (1922), we wrote:
"It is true that the doctrine of subsequent negligence on the part of either plaintiff or defendant is not to be applied in a case where the manifestation of peril and the catastrophe are so close in point of time as to leave...
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