Consolidated Freightways, Inc. v. Pacheco-Rivera, PACHECO-RIVERA

• Decision Date: 25 March 1988
• Docket Number: PACHECO-RIVERA
• Citation: 524 So.2d 346
• Parties: CONSOLIDATED FREIGHTWAYS, INC., and Delza L. Smith v. Mary C., individually, and as executrix of the estate of Enrique Pacheco-Rivera, deceased, and as mother and next friend of Samuel Donald Pacheco-Wilson, a minor. Mary C., individually, and as mother and next friend of Samuel Donald Pacheco-Wilson, a minor v. CONSOLIDATED FREIGHTWAYS, INC., and Delza L. Smith. 86-669, 86-751.
• Court: Alabama Supreme Court

Page 346

524 So.2d 346

CONSOLIDATED FREIGHTWAYS, INC., and Delza L. Smith v. Mary C. PACHECO-RIVERA, individually, and as executrix of the estate of Enrique Pacheco-Rivera, deceased, and as mother and next friend of Samuel Donald Pacheco-Wilson, a minor.

Mary C. PACHECO-RIVERA, individually, and as mother and next friend of Samuel Donald Pacheco-Wilson, a minor v. CONSOLIDATED FREIGHTWAYS, INC., and Delza L. Smith.

86-669, 86-751.

Supreme Court of Alabama.

March 25, 1988.

Bibb Allen of Rives & Peterson, Birmingham, for appellants/cross-appellees.

J. Gusty Yearout, William P. Traylor III, and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellees/cross-appellants.

PER CURIAM.

Mary C. Pacheco-Rivera (Mary Pacheco) individually and as executrix of the estate of Enrique Pacheco-Rivera; and Samuel Donald Pacheco-Wilson (Donnie Pacheco), a minor child, by and through his mother and next friend, Mary Pacheco, filed suit in the Circuit Court of Jefferson County against Consolidated Freightways and Delza M. Smith, alleging that Consolidated Freightways and Smith, the driver of its truck, negligently and wantonly caused a vehicular accident in which Enrique Pacheco-Rivera (Enrique Pacheco) was killed and Mary and Donnie Pacheco were injured. The trial court's orders with regard to the wanton counts are not involved in this appeal.

The case was tried before a jury, which returned a verdict in favor of the plaintiffs and made the following awards: Mary Pacheco as executrix of the estate of Enrique Pacheco--$525,000; Mary Pacheco individually--$250,000; and Donnie Pacheco--$100,000. Consolidated Freightways and Smith filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied the JNOV and denied the motion for a new trial, on the condition that Mary Pacheco individually agreed to remit all damages in excess of $100,000 on her claim, and that Donnie, by and through his mother, Mary, agreed to remit all but $15,000 of the damages awarded to him. Consolidated Freightways and Smith then filed a notice of appeal. Mary and Donnie filed cross-appeals, asking that the original jury verdict be reinstated for each of them.

FACTS

Enrique Pacheco, husband of Mary Pacheco, was killed, and Mary and Donnie Pacheco were injured as a result of a vehicular accident that occurred on July 21, 1984, on Highway 31 at the Warrior River Bridge in Jefferson County. At the time of the accident, Enrique Pacheco was driving a Dodge Trans Van and was traveling north on Highway 31. Smith, an employee of Consolidated Freightways, was also traveling north on Highway 31, driving a tractor-trailer unit consisting of one tractor and double trailers owned by Consolidated Freightways. At the site of the accident, Highway 31 had four lanes. The two northbound lanes crossed the Warrior River on a bridge separate from the two southbound lanes. Smith was carrying a load of freight to Nashville, Tennessee, and the Pachecos were en route to their home in Illinois.

The accident occurred as the Consolidated Freightways truck attempted to pass the Pacheco vehicle while both vehicles were on the bridge. The evidence showed that at the time of the initial impact, the Consolidated Freightways truck was traveling between 55 and 60 m.p.h. and the Pacheco vehicle was traveling between 45 and 50 m.p.h. The initial impact was between the left rear guard panel of the van and the right front tire of the Consolidated Freightways tractor. Neither Smith nor Mary Pacheco saw the initial impact as it occurred. Mary Pacheco first realized that there was going to be an accident when she felt a light bump to the left rear of the van.

The evidence concerning the point in the road where the impact occurred is disputed. Smith testified at trial that when he drove upon the bridge, his tractor-trailer unit was as close as possible to the left guardrail without hitting it. He also testified that when the initial impact occurred he was still against the left guardrail, and that he had applied his brakes before impact when he saw the Pacheco vehicle moving toward him. Mary Pacheco testified that when she felt the bump to the rear of the van, she looked in front of her and saw that the van was properly in the far right lane. A Jefferson County sheriff's deputy who investigated the accident testified that all of the debris from the accident was located in the right lane. He found no debris in the left lane and no evidence that the impact occurred in the left lane.

As a result of the accident, Enrique Pacheco was killed and Mary Pacheco and her son, Donnie, were injured, and were transported by ambulance to Carraway Methodist Medical Center. Mary Pacheco lost consciousness during the accident as a result of an injury to her head. She also suffered numerous cuts and bruises to her face and an injury to her left ankle. She was hospitalized for six days. Mary Pacheco's hospital bill was $2,666.40 and the bill from her doctor was $300.00. Donnie Pacheco received multiple abrasions and bruises on the left side of his head, right trunk, and chest. He was hospitalized because the doctors feared that he had received a closed head trauma. He remained in the hospital for four days. The hospital bill incurred by Mary Pacheco as a result of Donnie's hospitalization was $939.75, and his doctor's bill was $230.00. In addition, Mary Pacheco missed two and one-half months from work because of her injuries.

The issue presented by the defendants' appeal is whether the trial court erred when it failed to charge the jury that a violation of a certain "Rule of the Road" ¹ was negligence or contributory negligence per se. The issue presented on the cross-appeal is whether the trial court's orders of remittitur, as a condition of its denial of the defendants' motion for a new trial, were erroneous.

I

At the close of the evidence, the trial court charged the jury with respect to certain Rules of the Road, as follows:

"[T]he Rules of the Road do consist of a number of statutes that have been enacted into law by your legislature regulating the flow of traffic upon the highways of this state. The violation of certain of these Rules of the Road by persons or by companies using the public highways is prima facie negligence. This means that the violation of such a rule is presumed to be negligence, but such violation is not under all circumstances negligence. And it is a jury question whether such is a violation and a particular case is negligence.

"Should you determine that the violation of such a statute is negligence, such negligence, in order to be actionable on the part of the plaintiff or a defense on the part of the defendants, must proximately cause or proximately contribute to the injuries or to the death complained of by the plaintiffs. Now, I'm going to read to you certain of these statutes, and the fact that I read these statutes is no indication that any of these statutes have been violated or that such violation is negligence or that any such violation proximately caused or proximately contributed to the injury or to the death complained of by the plaintiffs.

"It is for you to decide whether or not the statutes are applicable, whether or not they have been violated, and whether or not such violation is negligence and whether or not any such violation proximately caused or proximately contributed to the injuries or to the death complained of by the plaintiffs, depending upon what you find the facts to be in this particular case or these particular cases."

This instruction substantially follows Alabama Pattern Jury Instructions: Civil, 26.12 (1974). ²

The court charged the jury regarding four Alabama Rules of the Road. The only Rule of the Road given by the trial court that was applicable to the wrongful death claim, and the only rule under consideration in this appeal, was Ala.Code 1975, § 32-5A-88(1), which provides, in part: "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." (Emphasis added.)

In the references following A.P.J.I. 26.12, several cases are cited in which the violation of a Rule of the Road was held to constitute only prima facie evidence of negligence. Included in these cases is Luquire Insurance Co. v. McCalla, 244 Ala. 479, 13 So.2d 865 (1943). That case dealt with Alabama Code 1940 (Recomp.1958), Tit. 36, § 9 (driving on the right side of the highway), which set out a similar but more defined rule than is set out in § 32-5A-88(1). This Court in McCalla affirmed the trial court's refusal to charge that the violation of this particular Rule of the Road was negligence as a matter of law.

In McCalla, suit was filed because of a head-on collision between the plaintiff, McCalla, and Pizer, an employee of the defendant, Luquire Insurance Company. As in this case, there was a dispute regarding which vehicle was over the center line of the roadway. The defendant contended that the plaintiff had crossed the center line in violation of a Rule of the Road and that this constituted contributory negligence as a matter of law. In affirming the trial court's refusal to give the requested charge, this Court held that "a violation of statutory rules of the road prima facie constitutes simple negligence." 244 Ala. at 484, 13 So.2d at 869. A portion of this Court's rationale in so holding was that the plaintiff "may have been slightly across on his left of the actual center imaginary line unconsciously, in the exercise of due care, in judging where such line actually was in the road," and if so, the giving of the defendant's charge would have meant plaintiff's "negligence [was] conclusively fixed by law." 244 Ala. at 485, 13 So.2d at 869. This Court refused to hold that such conduct would constitute negligence as a matter of law and stated, "The law is not...