Fox v. Bartholf
| Decision Date | 24 August 1979 |
| Citation | 374 So.2d 294 |
| Parties | Betty D. FOX v. Lawrence F. BARTHOLF and Federal Coca Cola, Inc. 78-289. |
| Court | Alabama Supreme Court |
Kenneth L. Funderburk, of Phillips, Funderburk & Davis, Phenix City, for appellant.
J. Pelham Ferrell, of Ferrell & Davenport, Phenix City, for appellees.
The instant appeal is from a trial court grant of summary judgment for two of four defendants in a personal injury suit. The trial judge, pursuant to Alabama Rule of Civil Procedure 54(b), entered final judgment for the prevailing defendants and specifically found no just reason for delay of plaintiff's appeal. We affirm.
From the record, the facts appear uncontroverted. The appellee, Lawrence F. Bartholf, was driving a tandem truck belonging to his employer, appellee Federal Coca Cola, Inc. He was proceeding east on U.S. Highway 80 approaching the intersection of Alabama Highway 37. The posted speed limit for that section of road was forty-five miles per hour, but Bartholf's truck was traveling from thirty-five to forty miles per hour.
The intersection is marked by a blinking yellow light for those traveling on U.S. 80. However, the intersection itself is obscured from eastward travelers because it is located just over a short rise. Traffic in the intersection is not in view to those traveling east until a very short distance from the crossroads.
The appellant, Betty D. Fox, was a passenger in a vehicle traveling west on Highway 80. As the vehicle in which appellant was passenger approached the intersection of Highways 80 and 37, a pickup truck with trailer in tow was stopped or moving slowly in the west bound lane of U.S. 80.
Appellee Bartholf topped the rise and became aware of a possible collision between the vehicle in which appellant was riding and the pickup truck and trailer. Bartholf turned to his right and had partially removed his truck from the highway, when the automobile in which appellant was passenger struck the trailer and then struck appellee Coca Cola's truck. Appellant sustained personal injury in the accident and demands judgment in the sum of one hundred thousand dollars and costs.
Counsel for appellant cites Code 1975, § 32-5-91, a rule of the road, contending that appellee Bartholf was negligent per se when he entered the intersection at a speed exceeding fifteen miles per hour. The pertinent subsections of the statute are as follows:
(I)t shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful . . . .
(3) Fifteen miles an hour when approaching within 50 feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last 50 feet of his approach to such intersection, he does not have a clear and uninterrupted view to such approach to such intersection and of the traffic upon all the highways entering such intersection for a distance of 200 feet from such intersection
It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations . . . .
Compliance with the statute is prima facie lawful, and our cases hold that speeds exceeding statutory limits may or may not be lawful depending on existing conditions. Horton v. Mobile Cab & Baggage Co., 281 Ala. 35, 198 So.2d 619 (1967). Whether the statute is violated is normally a jury question. Id.
With the statute and constructive case law in mind, we turn to the proof necessary to make out a case of negligence per se. Although each of our past cases involving statutory negligence does not articulate all elements necessary for the cause of action, the amalgam of Alabama case law sets down certain requirements:
(1) The trial judge must determine as a matter of law that the statute was enacted to protect a class of persons which includes the litigant seeking to assert the statute. Simpson v. Glenn, 264 Ala. 519, 88 So.2d 326 (1956). See Bentley v. Lawson, 280 Ala. 220, 191 So.2d 372 (1966); McCloud v. Williams, 257 Ala. 611, 60 So.2d 339 (1952).
(2) The trial judge must find the injury was of a type contemplated by the statute. See Francis v. Imperial Sanitary Laundry Dry Cleaning Co., 241 Ala. 327, 332, 2 So.2d 388, 391 (1941) () See also W. Prosser, Handbook on the Law of torts § 36, at 195-97 (4th ed. 1971).
(3) The party charged with negligent conduct must have violated the statute. See Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974); Horton v. Mobile Cab & Baggage Co., 281 Ala. 35, 198 So.2d 619 (1967); ...
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...but by Restatement § 339. Furthermore, although the violation of a statutory standard may constitute negligence per se, Fox v. Bartholf, 374 So.2d 294 (Ala.1979), it does not follow that compliance with the "letter" of a statutory standard is nonnegligence per se. W. Keeton, D. Dobbs, R. Ke......
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