South Cent. Bell Telephone Co. v. Branum

• Court: Supreme Court of Alabama
• Citation: 568 So.2d 795
• Decision Date: 21 September 1990
• Parties: SOUTH CENTRAL BELL TELEPHONE COMPANY v. Marjorie BRANUM. 88-1169.

Page 795

568 So.2d 795 SOUTH CENTRAL BELL TELEPHONE COMPANY
v.
Marjorie BRANUM. 88-1169. Supreme Court of Alabama. Sept. 21, 1990.

Harold F. Herring and John O. Cates of Sadler, Sullivan, Herring & Sharp, Huntsville, and Wiltshire M. Booker, Jr. and J. Mark White of White, Dunn & Booker, and D. Owen Blake, Jr., Birmingham, for appellant.

Danny D. Henderson and Donald N. Spurrier of Spurrier, Rice & Henderson, Huntsville, for appellee.

PER CURIAM.

While crossing a street in Huntsville, Alabama, Marjorie Branum was struck by a South Central Bell Telephone Company work van. Because of injuries she sustained, she filed an action against South Central Bell and Billy J. Davis, Jr., the driver of the van, alleging negligence and wantonness. She also claimed that South Central Bell had negligently entrusted the van to Davis. It is not disputed that Davis was acting within the line and scope of his employment at the time of the accident. Both defendants denied the claims, and South Central Bell alleged that Ms. Branum had been contributorily negligent in regard to the accident. Ms. Branum dismissed her claims against Davis and dismissed the negligent entrustment claim against South Central Bell. At the close of the evidence for Ms. Branum, South Central Bell moved for a directed verdict on the negligence and wantonness claims. The motion was denied. South Central Bell renewed the motion at the close of all the evidence, and it was again denied. The jury returned a general verdict for Ms. Branum in the amount of $500,000 in "past damages" and $250,000 in "future damages" and the trial court entered judgment thereon. South Central Bell filed a motion for a judgment notwithstanding the verdict,

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or, alternatively, for a new trial. That motion was denied.

On appeal, South Central Bell argues that the trial court erred in submitting the wantonness and negligence claims to the jury. Because we hold that there was not sufficient evidence to support a finding that Davis's actions were wanton, and because the jury returned a general verdict for Ms. Branum, we reverse the judgment of the trial court and remand this cause for a new trial. Thus, we will not discuss the other issues raised by South Central Bell.

This action was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12; Koch v. State Farm Fire & Casualty Co., 565 So.2d 226 (Ala.1990); Robichaux v. AFBIC Development Co., 551 So.2d 1017 (Ala.1989). In actions filed after June 11, 1987, a directed verdict for the defendant is proper when the plaintiff has failed to present "substantial evidence" as to each element of her cause of action. Koch v. State Farm Fire & Casualty Co., supra.

Viewed in a light most favorable to Ms. Branum, the facts are as follows:

At approximately 1:30 p.m. on a clear, dry day, Ms. Branum departed Huntsville Hospital by the main exit, which is in the middle of the block on the east side of Gallatin Street, a two-way, four-lane thoroughfare that runs north and south. The hospital is bordered on the south side by Governor's Drive and on the north side by Sivley Road. One block north of Sivley Road, Gallatin Street is intersected by St. Clair Avenue. As Gallatin Street proceeds south through Sivley Road, it veers slightly to the west. After reaching the curb on Gallatin Street, Ms. Branum looked south and observed that there was no approaching traffic. Looking north, she observed that the traffic light at the intersection of Gallatin Street and Sivley Road was red. As to where she saw the van, Ms. Branum's testimony is somewhat unclear. Ms. Branum testified that, at that time, she saw the South Central Bell van and an automobile stopped at "the" red light. Both were headed south on Gallatin Street, the van in the far right lane, and the car in the left lane. At one point, she testified that as she stepped off the curb onto Gallatin Street the van and the car were stopped at the red light at Gallatin Street and Sivley Road, and that she did not see the van and the car again until she turned at the sound of squealing tires as Davis applied the brakes. ¹ She later testified that as she was crossing the street she saw the van and the car proceeding down Gallatin Street through the intersection at Sivley Road, that the van and the car were "zigzagging," and that the van was "trying to keep from hitting" the car. At any event, she testified that she had walked west across Gallatin Street and that she was approximately two steps from the west curb of Gallatin Street when the South Central Bell van hit her.

Davis testified that he and the driver of a car stopped at the traffic light on Gallatin Street at St. Clair Avenue, one block north of Sivley Road. He said that when the light turned green both drivers proceeded south through that green light and then through a green light at Gallatin Street and Sivley Road, at 30 to 35 miles per hour. The speed limit on Gallatin Street was 35 m.p.h. His testimony concerning his speed was corroborated by other witnesses and was not disputed by Ms. Branum. Davis testified that as he proceeded south on Gallatin Street he was looking straight ahead but did not see Ms. Branum. He stated that as he and the driver of the adjacent car passed through the slight westerly curve at the intersection of Sivley Road his attention was diverted by the...