Zaharavich v. Clingerman By and Through Clingerman

• Decision Date: 15 July 1988
• Citation: 529 So.2d 978
• Parties: Andrew ZAHARAVICH v. Margaret Ruth CLINGERMAN, a minor, who sues By and Through her mother and next friend, Ruth CLINGERMAN; and Ruth Clingerman, individually. 86-1161.
• Court: Alabama Supreme Court

Page 978

529 So.2d 978

Andrew ZAHARAVICH v. Margaret Ruth CLINGERMAN, a minor, who sues By and Through her mother and next friend, Ruth CLINGERMAN; and Ruth Clingerman, individually.

86-1161.

Supreme Court of Alabama.

July 15, 1988.

Kenneth T. Fuller, Enterprise, for appellant.

Steadman S. Shealy, Jr., of Buntin & Cobb, Dothan, for appellees.

JONES, Justice.

Andrew Zaharavich appeals from the denial of his post-judgment alternative motion for judgment notwithstanding the verdict or for new trial subsequent to the return of a jury verdict awarding Margaret Ruth Clingerman $22,572.25 for injuries received when she was hit by Zaharavich's pick-up truck on a downtown Dothan street. The award included medical expenses incurred by Ruth Clingerman on behalf of her daughter.

Margaret Ruth Clingerman had gone to the Houston County Courthouse in Dothan with her mother, Ruth Clingerman, on September 12, 1984. They parked their car in a parking lot across the street from the courthouse. While they were in the courthouse, it started to rain, and upon leaving, Margaret Ruth told her mother that she would run ahead and roll up the windows in the car. She then crossed four lanes of traffic by "jaywalking" and was struck by Zaharavich's pick-up truck in the fifth lane as he approached the light at the adjacent intersection. The plaintiffs admit the daughter's negligence in failing to use the pedestrian crosswalk and in crossing the street at the point she did. Zaharavich testified at trial that he did not see Margaret Ruth until she emerged from in front of a pick-up truck stopped in traffic to his left in the fourth lane and that he did not have a reasonable opportunity to avoid the accident.

The judge charged the jury on a theory of subsequent negligence, or "last clear chance," and the jury returned a verdict in favor of the Clingermans. The wantonness count of the complaint had been disposed of by a directed verdict in Zaharavich's favor at the close of plaintiffs' evidence. Zaharavich's motions for a directed verdict as to negligence were denied at the close of the plaintiffs' evidence and at the close of all the evidence.

There is no question as to contributory negligence. See Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961), and Fox v. Bartholf, 374 So.2d 294 (Ala.1979). Contributory negligence, however, is no defense to subsequent negligence. In other words, "a victim's initial contributory negligence in placing himself in a position of peril is no defense to [a claim of] subsequent negligence on [the] part of the defendant." Dees v. Gilley, 339 So.2d 1000, 1002 (Ala.1979). The elements of proof of subsequent negligence are: (1) that the plaintiff was in a perilous position; (2) that the defendant had knowledge of that position; (3) that, armed with such knowledge, the defendant failed to use reasonable and ordinary care in avoiding the accident; (4) that the use of reasonable and ordinary care would have avoided the accident; and (5) that plaintiff was injured as a result. Treadway v. Brantley, 437 So.2d 93 (Ala.1983). The main issue in the instant case is whether the evidence showed that Zaharavich had knowledge of Margaret Ruth's peril and had the opportunity to avoid the accident.

Testimony indicated that traffic was stopped for one city block when Margaret Ruth undertook her dash across five lanes. She was struck in the fifth lane (a right turn lane) by Zaharavich, who testified that he was coasting at 10 miles per hour. Although Zaharavich testified that he did not see Margaret Ruth until she was almost in front of his truck, it was brought out during cross-examination that, in answer to the question, "What was the plaintiff doing?" propounded in interrogatories, Zaharavich had stated, "Running and...