McGehee v. Harris
| Decision Date | 30 June 1982 |
| Citation | 416 So.2d 729 |
| Parties | Gregory Lee McGEHEE v. Louise Shaw HARRIS. 80-513. |
| Court | Alabama Supreme Court |
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Herbert W. Peterson of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
Gregory Lee McGehee (plaintiff) brought action against Louise Shaw Harris (defendant) for injuries he sustained as the result of a collision between his motorcycle and her automobile. The case was tried before a jury in the Circuit Court for Jefferson County. The trial court granted defendant's motion for a directed verdict against plaintiff's count alleging wantonness, but allowed the case to go to the jury on the count alleging negligence. The jury found both defendant and plaintiff negligent and the trial court instructed it to return a verdict for the defendant. The jury did so and judgment was entered accordingly. Plaintiff perfected this appeal after the denial of his motion for a new trial.
Two issues are presented for our review in this appeal. The first is: Did the trial court properly enter a directed verdict in favor of the defendant on plaintiff's count alleging wantonness? The second issue is: Did the trial court properly deny plaintiff's requested jury charges founded on the rules of the road contained in Code 1975, §§ 32-5-112(a) and 32-5-115? After our review of this appeal, we conclude that the trial court properly granted defendant's motion for a directed verdict on the count alleging wantonness, and properly denied plaintiff's requested jury charges.
The pertinent facts are as follows. On January 3, 1978, plaintiff was riding his motorcycle on Glynn Drive in Birmingham, Alabama. Plaintiff was traveling north toward defendant's home located on the east side of Glynn Drive. Defendant's home is located on the downward side of a hill as one travels north on Glynn Drive. Testimony related that one traveling northerly could not see traffic on the downward side of the hill until one reached its top. Both plaintiff and defendant testified that they first saw each other at the time plaintiff came over its top. The parties' testimony also was consistent and in agreement that defendant's vehicle already was in the road at the time the parties first saw each other. Plaintiff was familiar with the road prior to the date of the collision. The defendant had lived at her residence for twenty-four years. The exact distance between plaintiff and defendant when they first saw each other is uncertain. Defendant testified that plaintiff was seven or eight car lengths away. Plaintiff testified that it may have been 25-30 feet. Whatever the exact distance may have been, it is clear that it was relatively short. When the collision occurred, part of defendant's car was over the line dividing the two lanes of travel on Glynn Drive. Plaintiff struck defendant's car in the area of the passenger door on the right side of defendant's two-door, 1969 Ford Fairlane automobile. Although plaintiff's motorcycle had no speedometer, plaintiff testified he was traveling 18 to 20 miles per hour when he first saw defendant. Plaintiff testified that defendant was backing slowly when he first saw her. Defendant's testimony was similar. In her words she was backing at a normal speed.
Plaintiff theorizes that defendant acted in a wanton manner in causing the collision. Plaintiff argues that because defendant recognized his peril, she was obligated to do more than merely continue backing her automobile in a normal manner. He contends that defendant was obliged to take action to avert the recognized danger that she had created. Plaintiff takes the position that had defendant backed her vehicle more quickly, she could have cleared plaintiff's lane of travel for him.
At the outset it is appropriate that we note some basic principles regarding wantonness and the propriety of a directed verdict. A party's request for a directed verdict is governed by the following standard of review.
Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused.
Alabama Power Company v. Robinson, 404 So.2d 22 at 24 (Ala.1981); Alford v. City of Gadsden, 349 So.2d 1132 at 1135 (Ala.1979); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).
A directed verdict properly is granted only where [T]he facts are such that all reasonable men must draw the same conclusion from them.... Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
....
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint....
Alabama Power Company v. Robinson, at 25; Turner v. People's Bank of Pell City, 378 So.2d 706 at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).
This court has made the following observation regarding wantonness.
Each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result. Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Shepard v. Louisville & N. R. Co., 200 Ala. 524, 76 So. 850.
Simon v. Goodman, 244 Ala. 422 at 424, 13 So.2d 679 at 680 (1943) (emphasis added).
Applying the above-quoted principles, we conclude that the trial court correctly entered a verdict against plaintiff on his wantonness count. Although plaintiff insists that defendant was aware of the danger presented by the circumstances, the testimony of both parties was to the contrary. Neither party was conscious that "an injury would likely or probably result ...." Plaintiff called the defendant as an adverse witness and elicited the following testimony.
Q. Insofar as you were concerned, when you first saw him come over that hill were you perceiving any sort of danger or fear that there might be a collision?
A. Yes, sir.
Q. So when you first saw him come over the hill, you thought there was a chance that there could be a collision?
A. Yes, sir, if I didn't get the lane cleared.
Q. But you kept on backing up like you normally do; isn't that right?
A. Yes, sir.
Q. And then at some point as you were backing up normally--you testified earlier that you saw Greg switch lanes about halfway between you and he; is that right?
A. Yes, sir.
Q. And then you stopped?
A. Yes, sir.
Q. And then a collision occurred?
A. Yes, sir.
....
Q. When you saw Greg was crossing over from his lane over to the other lane, did it appear to you that he was doing that on purpose?
A. Yes, sir.
....
Q. Did it look like he was in control of his motorcycle at that time?
A. Yes, sir.
Q. So, just so we get this down, then I'm through, Mrs. Harris, with my questions.
You were backing out and saw Greg, up here (indicating), and then you kept your eyes on him; is that right?
A. Yes, sir.
Q. And you knew there was a possibility of a collision?
A. Yes, sir.
(Emphasis added.)
Plaintiff testified to a similar effect on cross-examination:
Q. All right. Did you on the afternoon of this accident have any judgment or opinion how much distance it would take you to stop going at whatever speed you were going when you first saw her car?
A. No, sir, I didn't. I didn't know I was going to hit the car.
(Emphasis added.)
The mere "possibility," or "chance," that there "might be" a collision does not rise to an awareness that injury "would likely or probably result" as stated in Simon v. Goodman. Thus, wantonness cannot be ascribed to defendant at the time the parties first observed each other.
The subsequent actions of the parties, from the time they first observed each other until the collision, also convinces us that plaintiff's count alleging wantonness is unfounded. As plaintiff proceeded down the hill and approached defendant's automobile, he took action to avoid defendant. He testified to the following on direct examination:
Q. What did you do in between those thirty feet between when you first saw the car and you hit it?
A. I saw her backing out, and I slowed down. And then I got closer and I--I just put on the brakes and started sliding.
Q. Now, did you ever start to go to the left?
A. Yes, I did.
Q. And about when? Was that towards the end of that thirty or twenty-five feet or further back?
A. It was at the end of it.
Q. And what were you doing? Why were you going to the left?
A. Well, she was blocking mostly the right lane and a little bit of the left, and I was going to try to go around her.
Q. Did you ever get around her?
A. No, sir.
Defendant's testimony substantially agreed with plaintiff's.
Q. Whereabouts in that lane was he when you first saw him? Was he in his lane?
A. Yes, sir, coming over the top of the hill.
Q. And you were trying to clear his lane so he could drive on through?
A. Yes, sir.
Q. Continue, if you would. I'm sorry I interrupted you.
A. And about halfway down the hill he...
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