Whitmore v. Burge

• Decision Date: 31 July 1987
• Citation: 512 So.2d 1320
• Parties: Sandra F. WHITMORE v. Herman Stanley BURGE. 85-1370.
• Court: Alabama Supreme Court

Page 1320

512 So.2d 1320

Sandra F. WHITMORE v.Herman Stanley BURGE.

85-1370.

Supreme Court of Alabama.

July 31, 1987.

Jon B. Terry of Bains and Terry, Bessemer, for appellant.

Jackie M. McDougal, Bessemer, for appellee.

BEATTY, Justice.

Appeal by plaintiff, Sandra F. Whitmore, from a judgment for defendant, Herman Stanley Burge, based upon a jury verdict in plaintiff's action against defendant arising out of an intersection collision between their automobiles.

Plaintiff's complaint alleged negligence and wantonness and prayed for damages for personal injuries and property damage.The defendant's answer denied either negligence or wanton conduct, and alleged contributory negligence.

On trial, each party moved for a directed verdict at the close of plaintiff's evidence.These motions were denied.At the close of the defendant's evidence, each party again moved for a directed verdict, and, again, each motion was denied.Additionally, after considering arguments of counsel, the trial court dismissed plaintiff's count alleging wanton conduct, and submitted the case to the jury upon the theories of negligence and contributory negligence.Ultimately, the jury returned a verdict for the defendant.Plaintiff's post-trial motions for a new trial or JNOV and to amend or alter the verdict were denied, and this appeal followed.

On appeal, plaintiff insists that the trial court erred in refusing to grant her motions for a directed verdict and for JNOV, that it erred in refusing to submit to the jury the issue of wantonness, and that it also erred in admitting into evidence certain testimony of defendant's wife referable to a posed photograph.

The facts of the case are undisputed.According to the plaintiff, she was traveling east on Warrior River Road within the City of Hueytown, approaching the intersection of High School Road and Cherry Avenue.She had a cup of coffee in one hand and was driving with the other.Travelling between 35 and 40 m.p.h., in a zone with a speed limit she knew to be 35 m.p.h., she could see the front of defendant's vehicle sitting in the intersection for a distance of one-quarter of a mile.At the time in question, the intersection was controlled by an improperly functioning traffic signal that was flashing "caution [yellow]" in plaintiff's direction and "stop [red]" in the direction of defendant's vehicle, which was stopped at the intersection.According to plaintiff:

"A. ...After I got around the curve I saw him sitting there, and I noticed he kept sitting there, and sitting there.So as I got closer I started slowing down because I was wondering why he sat there so long.

"Q.Let me ask you this: You observed him from the curve, you saw him sitting there and he didn't go through, and you knew he had time to go through.

"A.Yes, sir.

"Q.And you were looking at the blinking, caution light?

"A.Yes, sir.

"Q.Let me ask you, when you came around the curve there and you traveled there for some distance, you became concerned about his car sitting there, didn't you?

"A.Yes, sir.

"Q.As a matter of fact, you stated that 'I just had this feeling that he was going through.'

"A.Goingto hit me when I saw him.

"Q.All right.But you just had this feeling that he was going through.You saw him there from the curve and you were travelling and he was still sitting there a quarter of a mile away, and he was still sitting there.

"A.That's why I got that feeling because he was still sitting there.

"Q.And you thought he was going through.

"A.Yes, sir; and I slowed down.

"Q.And you were looking at a double flashing caution light; is that correct?

"A.Uh-huh.

"Q.Could you see all of his vehicle?

"A.No, sir.I could just see that there was a car there, just the front of the white.

"Q.Youcould see the front then, couldn't you?

"A.Uh-huh.

"...

"Q.Youmay not have been able to see Mr. Burge sitting in the vehicle, but you could see the front of the vehicle.

"A.I saw a car.

"Q.Okay.And you got concerned and you could see that some quarter of a mile away.

"A.(Witness nods head.)

"Q.All right.You could see at least some part of the vehicle sitting there.You knew it was a vehicle sitting there.

"A.Yes, sir.

"Q.And you knew it had time to go through?

"A.Yes, sir.

"Q.And you became concerned that it may go through; correct?

"A.Yes, sir.

"Q.Did you blow your horn?

"A.No, sir.

"Q.Did you stop?

"A.No, sir; I had the right of way.

"Q.Youhad the right-of-way.You didn't stop.You knew you were looking at a double caution light.You didn't stop; you didn't blow a horn.

"A.No, sir.

"Q.Youdidn't try to change your course of travel?Did you?

"A.I slowed up to see what was--and then I saw him coming at me, I speeded up.

"Q.But you did not try to change your course of travel.

"A.I had nowhere to go.Where would I go?

"Q.Justanswer my question.Did you try to change your course of travel?

"A.No, sir.I had nowhere to go.

"Q.And you could see this vehicle and you thought it was going through.

"A.Yes, sir.

"Q.Let me ask you this: What did you do?

"A.I slowed up when I saw him sitting there, and then when I saw him coming at me, and he took off real fast, I just pushed my accelerator to the floorboard trying to go, because he would have killed me if he had hit me, if I hadn't done that."

The defendant described his movements at the time and place in question as follows:

"Q.On this morning when you approached this intersection, did you see a traffic control device?

"A.Yes, sir.

"Q.What did you see there?

"A.Lights blinking red.

"Q.The light blinking red, was that facing you?

"A.Yes, sir.

"Q.What did you do?

"A.I stopped.

"Q.In relation to the intersection there, and in relation to the edge of the pavement of Warrior River Road, where did you stop?

"A.Justas close to the curb on my right lane and about six feet from the pavement on Warrior River Road.

"Q.And what did you do at that time?

"A.Waited for that light to turn green.

"Q.Was it blinking?

"A.Blinking red.

"Q.Did it ever turn green?

"A.No, sir.

"Q.After you were there watching the light, what, if anything did you do?

"A.After watching the light, I waited to see if it had time to make the cycle; never did do it, so some horn behind me began to blow and I still didn't move, waiting again.And I waited, and waited, and waited, and I saw two cars go in front of me traveling at a very slow rate of speed.

"Q.Where were they travelling?

"A.They were going west.

"Q.What did they do there at the intersection?

"A.They just went straight on through--these two first ones went straight on through like you're going down to Concord.Later on, one coming from west to east on Warrior River Road turned to the right under that traffic light, and it's still blinking yellow on Warrior River Road and red on Cherry and High School Road.And two more came going from east to west and turned to the right, which would be to my left.

"Q.Right beside you?

"A.Right beside of me on my left side.

"Q.And that would be going down Cherry; is that right?

"A.They were going down Cherry; that's right.

"I looked thisaway; I looked straight; I looked thisaway; I looked back watching the two lights there because there had been times that one would be out.There's two of them blinking the red, and waiting on the time.And the second time, people started blowing behind me.

"Q.What did you do when they started blowing?

"A.Looked at the lights again thisaway, thataway, thisaway and back here, and then eased out into the street.

"Q.Were the vehicles you say were blowing, where were they located in relation to the vehicle you were in?

"A.Right behind me.

"Q.After they started blowing, what did you do?

"A.Eased out going straight across and would be entering into High School Road.

"Q.At that time is when the accident occurred?

"A.That's the time the accident occurred."

Burge testified that his car had reached a speed of 10 to 12 m.p.h. when the collision occurred.He did not see the plaintiff coming, and did not look in her direction after he entered the intersection.

An investigating officer, Richard Waldron, testified that the accident occurred "more or less in the middle of the intersection on High School Road and Cherry Avenue, but on the eastbound lane of Warrior River Road."Waldron testified to the presence of several signs and a utility pole that could obstruct the view of one in the position of defendant: "If you're sitting back from the intersection--I'll say the intersection is the line that comes across here--it forms a square.And if you're sitting back away from the intersection, they could."He added that one could see both ways by pulling up to the point of the intersection.Waldron also testified that he was acquainted with defendant Burge, and that Burge had trouble seeing "a little bit."He based his conclusion on an occasion five years before in Mr. Burge's business when Burge told him "he couldn't see too good close up."

An eyewitness to the accident, Jimmy Hayes, testified that he saw Mr. Burge "sitting at the red light," and then saw that Burge "approached out slowly and then approximately about halfway across the lane, he speeded up."According to Hayes, both vehicles entered the intersection at the same time.He added:

"Q.What drew your attention to his vehicle?

"A.What drawed my attention to him, he didn't act like he was sure if he should go or not go.

"Q.Well, did you see some vehicles behind him?

"A.About two or three minutes after that one pulled up behind him and a truck pulled up behind him.

"Q.Did they blow?

"A.Yes, sir, the lady in the car behind him.

"Q.Did that draw your attention to the intersection?

"A.Yes, sir.I wanted to get out there and tell her to stop.

"Q.And they sat there a good little while?

"A.They sat there about two or three minutes."

Hayes testified to observing plaintiff's...