Hanson v. Waller

• Decision Date: 20 November 1989
• Docket Number: No. 88-8406,88-8406
• Citation: Hanson v. Waller, 888 F.2d 806 (11th Cir. 1989)
• Parties: 29 Fed. R. Evid. Serv. 263 William Henry HANSON, Plaintiff-Appellant, v. Ralph Stanley WALLER, LVL Inc., National Car Rental System Travelers Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 806

888 F.2d 806

29 Fed. R. Evid. Serv. 263

William Henry HANSON, Plaintiff-Appellant, v.Ralph Stanley WALLER, LVL Inc., National Car Rental System Travelers Insurance Company, Defendants-Appellees.

No. 88-8406.

United States Court of Appeals Eleventh Circuit.

Nov. 20, 1989.

Douglas L. Breault, Columbus, Ga., for plaintiff-appellant.

James P. Boston and Bryan F. Dorsey, R. Chris Irwin & Associates, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY ^* and HILL ^*, Senior Circuit Judges, and MARCUS ^**, District Judge.

MARCUS, District Judge:

This wrongful death case appears before us on one charge of error in the district court's instructions to the jury, three charges of error in rulings upon evidentiary issues and one claimed error in a certain statement made by the district court in the presence of the jury.We find no reversible error in any of these claims and, accordingly, affirm the judgment of the district court.

I.Factual Background

Appellants brought this action on behalf of the deceased, Alfaretta Spina("Spina") who died of injuries sustained after being struck by a truck driven by AppelleeRalph Waller("Waller").On April 25, 1985, a tractor-trailer truck operated by Waller was stopped for a red light in the far right lane of a four lane street at a downtown Columbus, Georgia, intersection.Ms. Spina, 77 years old at the time, started to walk from the sidewalk to the right of the truck across the street.When she was in front of the truck, the light changed from red to green, and the truck proceeded forward, striking the deceased.

At trial, Appellants contended that the truck driver was negligent in stopping in the crosswalk, failing to keep a proper lookout, failing to yield to a pedestrian in the crosswalk and in failing to discover the pedestrian.Appellees argued that Waller, who never saw the deceased until exiting the truck after the deceased was struck, was not negligent, but rather that Ms. Spina was negligent in traveling into the street on a yellow light, in failing to get out of the way of the truck, in hesitating in her journey in front of the truck and in walking too close to the truck.The jury found for the Appellees.

II.Jury Charge of Accident

First, Appellants contend that the district court committed reversible error by giving a charge on "accident" to the jury, because, they claim, the evidence necessarily showed that either the truck driver was negligent or the deceased was negligent.The district court charged the jury on "accident" in these terms:

Now, finally, in talking about negligence, comparative negligence, giving you all these statutes, if you find that nobody was negligent in the circumstances here--if you find that the truck driver was not negligent and no negligence on his part was a proximate cause of this injury, if you find that the deceased lady was not negligent, no negligence on her part was a proximate cause--then you would've concluded that there wasn't any negligence on the part of anybody that was the cause of this incident, that it was something that just happened, what the law calls a pure accident.That means where there was not any negligence on the part of anybody that caused it.It was something that just happened.

Of course, if you conclude that, then the plaintiff would not be entitled to recover because those two things that I first pointed out had to be proved would not have appeared.So it's just a question of what you determine.

SeeRecord Vol. 2at 227.

Georgia law on the charging of accident is set out in Chadwick v. Miller, 169 Ga.App. 338, 312 S.E.2d 835, 840(1983):

The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable.Unless there is evidence authorizing a finding that the occurrence was an "accident" as thus defined, a charge on that defense is error.

(emphasis in original) (citing Morrow v. Southeastern Stages , 22 S.E.2d 336(Ga.App.1942);Toles v. Hair , 63 S.E.2d 3(Ga.App.1951)(adopting definition of accident applied by the Georgia Supreme Court in Everett v. Clegg , 97 S.E.2d 689(Ga.App.1957)).

Under Georgia law, a jury charge on accident is proper if there is evidence to support the conclusion that the event in question was an accident.Kent v. Henson, 174 Ga.App. 400, 330 S.E.2d 126, 129(1985)(no error in giving charge on accident);Reed v. Heffernan, 171 Ga.App. 83, 318 S.E.2d 700, 705(1984)(no error);Wilhite v. Tripp, 179 Ga.App. 428, 346 S.E.2d 586, 587(1986)(no error);Southern Railway Co. v. Georgia Kraft Co., 188 Ga.App. 623, 373 S.E.2d 774, 777(1988)(no error where jury was given accident charge in situation where the evidence presented the jury with an alternative that the collision could have occurred, notwithstanding the exercise of due care on the part of both parties).In the instant case, our task is to determine whether "evidence presented to the jury ... could conceivably support a finding that neither [the decedent] nor Appellees were negligent."Andres v. Roswell-Windsor Village Apartments, 777 F.2d 670, 674(11th Cir.1985)(holding that charge as to legal accident was proper under Georgia law).Here the charge was proper.

In our view, the district court's instruction on accident did no more than inform the jury that if they found that neither party was negligent, then they would have found that what occurred was an accident--an occurrence which took place in "the absence of negligence and for which no one would be liable."Chadwick, 312 S.E.2d at 840.The evidence presented to the jury was sufficient to support a finding that neither party was negligent and, therefore, it was not error to charge an accident.To begin, testimony was presented that Waller could not see a pedestrian walking directly in front of the truck.SeeRecord, Vol. 2at 100, 125-36.Further testimony revealed that none of the witnesses to the event saw from where Ms. Spina began to walk across the street.SeeRecord, Vol. 2at 33, 53.Therefore, the deceased could have been walking on the sidewalk directly beside the side of Waller's truck and then turned left to cross the street in front of the truck.The evidence was also ambiguous as to where the truck had stopped--at or before the unmarked crosswalk.In addition, testimony was presented to show that there was shrubbery in the area and that the shrubbery could be as high as 20 feet.SeeRecord, Vol. 2at 130-31.This shrubbery, the jury could have concluded, blocked the truck driver's view of the deceased.Waller testified that he did look to his left and right prior to accelerating.SeeRecord, Vol. 2at 100, 110.Moreover, although no witness at trial had been in a position to say that the light was green for the deceased when she began to cross the street, the jury could have concluded that the light was green for her at the time she began to cross.One witness, who was in his car stopped at the traffic light heading in the opposite direction of the truck, said that the light turned green for his direction at a time when Ms. Spina was in front of the truck.SeeRecord Vol. 2at 26, 34.We add that no testimony was presented concerning possible negligence of a third party for the inoperative "walk/don't walk" sign.

In short, evidence was presented from which the jury could reasonably conclude that Defendant Waller had not breached any duty of reasonable care that he owed to pedestrians.Evidence showed that he looked both ways for pedestrians and not seeing anyone, nor being able to see anyone who was walking the path of deceased in crosswalk or anywhere else near his vehicle, he proceeded forward at an ordinary pace.Moreover, evidence showed that the deceased had the green light and proceeded to cross, with the light, but that when the light turned yellow and then red, she was unable to move to a position where she would not be struck.The evidence was more than sufficient to support a jury finding that the deceased was not negligent in her actions as well.¹Accordingly, sufficient evidence was adduced at trial to justify the district court's instruction on accident and we find that no error was committed.

III.Evidentiary Issues

Appellants further charge as error three events at trial all relating to the testimony of Detective Mark Starling, called on direct examination by the Plaintiff.Appellants contend that the district court committed error by permitting the detective, who was qualified as an expert, to testify that in his opinion neither the truck driver nor the pedestrian did anything wrong or anything that contributed to the accident.Appellants also claim error because the district court briefly questioned the witness.The following sequence of questioning between counsel for Defendant and Detective Starling occurred at trial:

Q: Well, I just want to be sure, you know.There's a lot and I may have left something out.

Okay.Now, having completed your investigation and all on this accident and having--have you been able to reconstruct how it happened?

A: I have an opinion, yes, sir.

Q: Why don't you just tell us how you've been able to reconstruct how this accident happened?

A: How I reconstructed it was based on my findings from what the witnesses told me plus what we found at the scene plus what the driver told us.

Q: And your conclusion, sir?

A: Was that the deceased was attempting to cross Fourteenth Street.She came to the intersection.Traffic westbound and eastbound were stopped for red traffic signal.Evidently she assumed she had the right-of-way and stepped out in front of the truck.The driver did not see her, the light turned green and he proceeded westbound on Fourteenth Street.

Q: Do you think the driver did anything that contributed to this accident?

MR. BREAULT (Counsel for Plaintiff): Objection, Your Honor....