Elba Wood Products, Inc. v. Brackin

• Decision Date: 27 January 1978
• Parties: ELBA WOOD PRODUCTS, INC., a corporation, et al. v. Guy E. BRACKIN et al. SC 2471.
• Court: Alabama Supreme Court

Page 119

356 So.2d 119

ELBA WOOD PRODUCTS, INC., a corporation, et al. v. Guy E. BRACKIN et al.

SC 2471.

Supreme Court of Alabama.

Jan. 27, 1978.

Alan C. Livingston of Lee & McInish, Dothan, for appellants.

Kenneth W. Hooks of Pittman, Whittaker & Hooks, Enterprise, for appellees.

BEATTY, Justice.

This is an appeal by the defendants, Elba Wood Products, Inc. and C. G. Nicholson, from a $30,000 judgment based on a jury verdict awarded to plaintiffs, Guy E. Brackin and United States Fidelity and Guaranty Company (USF&G), by the Circuit Court of Coffee County. We affirm.

Plaintiff Brackin, of Enterprise, is an experienced log truck driver in his mid-thirties, employed by his brother, R. M. Brackin, d/b/a Brackin Timber Company. On May 16, 1973, while on defendant Elba Wood Products' woodyard in Elba, plaintiff was injured by a log which fell from plaintiff's truck as the truck was about to be unloaded. As a result of the accident plaintiff's right leg was broken, and his left leg was so severely injured that it had to be amputated.

Plaintiff brought suit alleging that defendants were negligent and/or subsequently negligent in causing or allowing a portion of the logs to fall from the truck and/or failing to provide protection for the plaintiff or assistance to the plaintiff with and by the use of a forklift. The defendants contended that the plaintiff was guilty of contributory negligence and/or subsequent contributory negligence, alleging that plaintiff commenced and continued with the unloading procedure knowing that the forklift was not yet braced against the logs and thus could not provide protection for the plaintiff.

The defendants' first motion to dismiss was granted. The plaintiff then amended his complaint to add as party-plaintiff USF&G, the workmen's compensation carrier for plaintiff's employer. USF&G appeared and claimed in subrogation the sum of $14,356.75. Defendants' second motion to dismiss was denied. Defendants' answer was a general denial and a plea of contributory negligence on the part of the plaintiff.

At the conclusion of plaintiff's (Brackin's) case, defendants' motion for a directed verdict was denied. At the close of all evidence defendants refiled the motion for directed verdict and again it was denied. After the jury verdict in plaintiff's favor and the judgment thereon, defendants filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. Both motions were denied, whereupon defendants perfected this appeal.

Defendants raise four issues:

1. Whether plaintiff presented sufficient evidence to carry his burden of proof.

2. Whether evidence tending to show improper medical treatment by the hospital was admissible.

3. Whether a charge to the jury that the plaintiff might recover if the jury believed "the truthfulness of plaintiff's claim" was proper.

4. Whether plaintiff proved any entitlement to a recovery for future medical expenses.

The first issue raised by defendants is that the plaintiff failed to present sufficient proof to carry his burden of proof on alleged negligence and/or subsequent negligence of the defendants.

On many previous occasions this Court has stated the requisite elements of negligence and subsequent negligence. "Negligence" is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969). In every action grounded upon negligence there are three essential elements to a right of recovery. First, a duty owed by the defendant to the plaintiff; second, a breach of that duty; and third, an injury to plaintiff in consequence of that breach. Sammons v. Garner, 284 Ala. 131, 222 So.2d 717 (1969). To predicate liability on "subsequent negligence" it must be shown that plaintiff was in peril and that defendant had actual knowledge of plaintiff's peril but negligently failed to prevent the accident when he had the means available to do so. Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972); Hulsey v. Illinois Central R. Co., 242 Ala. 136, 5 So.2d 403 (1942).

Under the facts of this case, plaintiff was a "business invitee" of defendants. Winn-Dixie Montgomery, Inc. v. Rowell, 52 Ala.App. 1, 288 So.2d 785, cert. den., 292 Ala. 758, 288 So.2d 792 (1973). See Annotation, 86 A.L.R.2d 1399 (1962). Accord, Nowell v. Harris, 219 Miss. 363, 68 So.2d 464 (1953), where a truck driver delivering lumber for his employer to the buyer's lumber yard was a "business invitee" of lumber yard operators. Thus defendants owed plaintiff the duty not to injure him negligently, willfully or wantonly. Farmers' and Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406 (1928).

Whether there is negligence on the part of an invitor or invitee necessarily depends upon all the facts and circumstances in each particular case. First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18 (1960).

The facts in this case show that the plaintiff had never been to the defendants' woodyard prior to the day of the injury. Plaintiff's log truck, which was specifically designed to carry logs, had been loaded by plaintiff's employer and driven to the woodyard by plaintiff. The logs were weighed on the woodyard's scales and purchased by defendants. Defendants then told plaintiff that he should drive his truck to a designated unloading site, and that a forklift would be sent to assist in the unloading. Plaintiff proceeded to the designated site which was fifty to one hundred yards from the scales, and got out of the truck, leaving the motor running. Then he began unbinding the logs while he waited for the forklift to arrive.

The load consisted of logs 14 to 16 feet in length with diameters of 8 inches and larger. These logs were loaded "lengthwise" on plaintiff's single-axle, poled trailer, in such a way that the lengths of the logs ran from the front of the trailer to the rear. The logs were secured by chains and binders wrapped around each end of the load. On each side of the trailer were 2 upright standards, or bolsters, which held the load on the trailer.

The unloading procedure required that the chains and binders be removed and that the bolsters be "tripped" from the left to the right by the plaintiff standing on the left side of the truck so that the logs would fall off on the right side of the truck. Defendant Nicholson was to operate the forklift which would brace the load while plaintiff tripped the bolsters, to prevent the logs from falling on the left side, where both plaintiff and defendant Nicholson were located. The tripping of the bolsters would then allow the logs to be pushed off the truck by the forklift onto the ground on the side away from the workers. Brackin testified that during the unloading procedure he was required to face the truck so that he could position the metal bar which would trip the bolsters.

Both parties agreed that in order for the forklift to provide protection it had to be directly against, and touching, the logs.

Unfortunately, before the unloading was completed, the top log on plaintiff's truck fell on the left side of the truck, grievously injuring plaintiff as he attempted to trip the bolsters. What caused the log to fall was not directly established. Plaintiff presented testimony tending to show that defendant Nicholson had arrived with the forklift, that the forklift was positioned 6 to 8 feet (the length of the prongs on the forklift) behind plaintiff, and that Nicholson had gotten out of the driver's seat to stand on the running board of the forklift, leaving the motor of the forklift running. Defendants presented testimony tending to show that the forklift was still enroute to the truck, and was 15 to 20 feet away from the truck when the accident occurred. Thus the principal conflict in the testimony concerns the distance of the forklift from the truck when the log fell upon plaintiff.

It is fundamental in Alabama law that on appeal the Court does not weigh the evidence regarding its reasonably satisfying effect on the issue tendered, but rather indulges all favorable presumptions to sustain the trial court's conclusion, and will not disturb that conclusion unless it is plainly erroneous or manifestly unjust. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). And upon appeal from the refusal of the trial court to give the affirmative charge for appellants, we have held that the evidence must be viewed in a light most favorable to appellees, and the action of the trial court will be affirmed if a reasonable inference to the appellants may be drawn from the evidence. Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961); Poole v. Life and Casualty Insurance Co. of Tennessee, 47 Ala.App. 453, 256 So.2d 193 (1971). The presumption in favor of the correctness of the jury's verdict is strengthened when the trial court refused to grant a motion for a new trial. Edmondson v. Blakey, 341 So.2d 481 (Ala.1976); Prescott v. Martin, 331 So.2d 240 (1976).

The scintilla rule prevails in Alabama, and under that rule issues in civil cases must go to the jury if the evidence, or a reasonable inference therefrom, furnishes a mere glimmer, spark or smallest trace in support of an issue. Hartford Accident and Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965). Under the facts of this case, we cannot say that as a matter of law the plaintiff failed to produce a scintilla of evidence, either as to the negligence or subsequent negligence of defendants. From the evidence the jury may well have decided that the defendants owed to the plaintiff the duty of protection, that defendants breached that duty by failing to prevent the log from falling and that the breach of that duty proximately caused plaintiff's injury. Likewise, the jury reasonably may have believed that defendants had actual...