Maslankowski v. Beam

Decision Date30 March 1972
Docket Number3 Div. 466
Citation259 So.2d 804,288 Ala. 254
PartiesJohn A. MASLANKOWSKI v. Sue C. BEAM, a minor, who sues by and through her mother and next friend, Barbara F. Quernemeon.
CourtAlabama Supreme Court

Ball, Ball & Matthews, Montgomery, for appellant.

Richard H. Gill, and Frank W. Riggs, III, Montgomery, for appellee.

HEFLIN, Chief Justice.

This is an action for personal injuries alleged to have been sustained by Sue Beam (appellee-plaintiff) as a result of a collision between an automobile driven by her and an automobile driven by John Maslankowski (appellant-defendant) at the intersection of the Southern Bypass and the Troy Highway (which becomes McGehee Road when it crosses the Southern Bypass) in Montgomery County, Alabama.

The complaint as originally filed and amended alleged simple negligence in Count I and wantonness in Count II. At the conclusion of the evidence the case was submitted to the jury on both counts, and the jury returned a verdict in the amount of $125,000 for the appellee.

On November 5, 1969, appellant-defendant left his place of employment, Montgomery Aviation, in route home around two o'clock in the afternoon. The exact time he left work is in dispute. Appellant-defendant testified in his deposition that he left work about 2:05 p.m. During the trial he first testified that he departed a minute or two after two o'clock. Later he said he did not know exactly what time he left work, but it was '1:55, 2:05, somewhere in that area'. Police records reflected that the Montgomery Police Department was notified of the accident at 2:14 p.m. The collision occurred at an intersection 9.7 miles from Montgomery Aviation. At the point of impact the speed limit was 45 m.p.h.

Appellant-defendant, driving a 1966 Chevelle Super Sport, took his customary route home. He turned off the Mobile Highway onto the Southern Bypass heading in an easterly direction. As appellant-defendant approached the intersection of the Troy Highway, he was traveling in the north (left) lane of the two eastbound lanes a considerable distance behind a Holsum Bakery bread truck driven by Billy Franklyn Wallace. At this point the Southern Bypass is a four-lane road; the two eastbound lanes are separated from the two westbound lanes by a grass median. Approaching from the west two road signs warn motorists of the Troy Highway intersection. The first reads 'Intersection Slow', and the second, located nearer the intersection, reads 'Intersection Signal Ahead'. As the bread truck made a left turn onto McGehee Road, the appellant accelerated and proceeded to enter the intersection. Upon entering the intersection the appellant struck appellee's Corvair as she attempted to turn left across the eastbound lanes onto the Troy Highway. The traffic light was green as appellant approached the intersection and there was no left turn arrow located on either side of the light. The weather was clear and dry. The point of impact was identified by a police officer as being 15 feet from the south curb of the Southern Bypass and 6 feet east of the west curb of the Troy Highway.

The force of impact displaced the appellee's vehicle approximately 75 feet, causing it to turn around. It came to rest against a curb facing in a westerly direction. The appellant's vehicle came to rest approximately 60 feet from the point of impact also facing in a westerly direction. A witness (Preston Williams) testified he heard the crash and felt a 'sensation' from it and that the windows in a building 75 to 100 yards from the point of collision were jarred. No skid marks were left by either vehicle. Appellee suffered very severe and permanent injuries, including brain damage. She testified she was unable to recall anything about the accident.

Dispute exists as to the speed of the appellant's vehicle at the time of the accident. Appellant testified that he was traveling 40 to 45 miles per hour immediately before the accident. Plaintiff's evidence would tend to indicate appellant was traveling at a higher rate of speed. There is also considerable controversy as to when appellant first saw appellee's vehicle turning left across the eastbound lanes of the Southern Bypass. Appellant's testimony at trial indicated that appellant first saw the appellee turning left when he was at the edge of the median approximately 30 feet from the point of impact. The investigating police officer testified that immediately following the collision the appellant pointed out the location of his automobile when he first saw the appellee's automobile turning left. This location was approximately 150 feet from the point of collision.

The pre-trial deposition of Mr. Maslankowski (appellant) revealed that from the time he first saw Miss Beam's automobile until he saw she was not going to stop, he estimated that 15 seconds had elapsed. However, on checking the secondhand of the watch, he revised this estimate to 5 seconds. At his admitted speed of 40 to 45 miles per hour, using the 5-second interval as a basis, the jury could have determined that the appellant saw the appellee coming into the intersection 293 to 330 feet prior to the collision. There was evidence that the squeal of brakes and the sound of the impact occurred almost simultaneously.

Police investigator McCracken testified the right front tire of the automobile of John Maslankowski was blown and the bumper was sticking into the tire; the left fender was dented against the left tire, and in his opinion, the front wheels would not roll. This police officer also recited that the drive shaft of the appellant's car was bent.

The appellant contends that the trial court erred in giving the following charges:

'Plaintiff's Requested Charge No. 3:

'The court charges the jury that contributory negligence on the part of Sue Beam which will bar recovery by the plaintiff must be such that it caused the injury to Sue Beam or proximately contributed thereto, and even though you find from the evidence that Sue Beam was guilty of contributory negligence, if such contributory negligence was merely the cause of a condition, upon which negligence of the defendant in failing to use the means within his power to avoid the injury, after becoming aware of the peril of Sue Beam, operated as the sole, proximate cause of the injury to Sue Beam, such contributory negligence on the part of Sue Beam, if you find that there was such contributory negligence, will not prevent a recovery.

'Plaintiff's Requested Charge No. 4:

'I charge you Gentlemen of the jury that under the Rules of the Road enacted by the Legislature of Alabama, any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb, or property of any person. I further charge you that if you are reasonably satisfied from the evidence that the defendant in this case violated this rule of the road, then that is negligence as a matter of law. And if you are reasonably satisfied from the evidence that the plaintiff was not guilty of contributory negligence which proximately contributed to the accident, then your verdict should be for the plaintiff, Sue Beam.'

'Plaintiff's Requested Charge No. 6:

'I charge you that if Sue Beam's peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant, and her injury was the proximate result of his failure to perform his duty in this respect, Sue Beam would be entitled to recover, even if you shall believe from the evidence that Sue Beam may have been guilty of culpable negligence in the first instance.'

'Plaintiff's Requested Charge No. 10:

'I charge you that you may infer knowledge of danger on the part of the defendant if you are reasonably satisfied from the evidence that under the circumstances and conditions at the time and place of this accident, the defendant was aware that his driving created a hazard of harm to others, from which injury was likely to result, whether or not the defendant testifies himself that he was aware of the danger.'

In Faulkner v. Gilchrist, 225 Ala. 391, 143 So. 803 (1932) the circuit court gave the following charge which is very similar to plaintiff's requested charge no. 3 in the instant case:

"3. The Court charges the jury that contributory negligence on the part of plaintiff's intestate which will bar recovery by the plaintiff must be such that it caused the injury and death of plaintiff's intestate or proximately contributed thereto, and even though you find from the evidence that the plaintiff's intestate was guilty of contributory negligence, if such contributory negligence was merely the cause of a condition upon which negligence of the defendant in failing to use the means within his power to avoid the injury, after becoming aware of the peril of plaintiff's intestate, operated as the sole, proximate cause of the injury and death of plaintiff's intestate, such contributory negligence on the part of plaintiff's intestate, if you find that there was such contributory negligence, will not prevent a recovery."

This Court, in Faulkner, Id. at 394, 143 So. at 805, said the following in approving that charge:

'Appellant insists reversible error was committed in giving for plaintiff charges 1, 2, and 3. It is argued that charge 3 assumes defendant's negligence, which was a jury question (White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479), and likewise assumes the peril of plaintiff's intestate and defendant's knowledge thereof. 45 Corpus Juris 713. But we are not in accord with this interpretation of the charge. It was addressed to the question of contributory negligence and its effect on plaintiff's right of recovery. It stated an abstract proposition of law without applying it to...

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    ...Despite this, we find that the basis of the trial judge's decision to suppress Dr. Miller's testimony is sound. Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972), involved the opinion of an accident reconstruction consultant as to the speed of an automobile immediately prior to the c......
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