Cox v. Herrington

416 So. 2d 968

• Court: Supreme Court of Alabama
• Decided: May 28, 1982
• Docket: 80-656
• Status: Published

Opinions

Appellant Aubrey Steven Cox filed a complaint against Appellee B.C. Herrington alleging negligent and wanton operation of an automobile on May 24, 1979, which resulted in injuries to Cox. Herrington's answer denied the allegations of Cox and affirmatively stated that Cox was guilty of contributory negligence.

After discovery was completed by the parties a trial was held before a jury, beginning on March 16, 1981, and ending on March 17, 1981. At the conclusion of all of the evidence, Herrington's motion for directed verdict was granted as to the allegations of wantonness, and the negligence and contributory negligence issues were submitted to the jury. They returned a verdict in favor of Herrington. Cox filed a motion for new trial, which was denied by the trial court. Cox appeals, asking this court to reverse and grant him a new trial because the preponderance of the evidence presented at trial was so decidedly in favor of him that the jury verdict was wrong and unjust. We disagree with appellant and affirm.

In Alabama, the verdict of a jury is presumed correct and this presumption of correctness of the jury's verdict is strengthened once the trial court has entertained and denied a motion for a new trial. Cooper v. Peturis, 384 So.2d 1087 (Ala. 1980); Guthrie v. McCauley, 376 So.2d 1373 (Ala. 1979); MobileCity Lines, Inc. v. Hardy, 264 Ala. 247, 86 So.2d 393 (1956).

In reviewing the correctness of a jury verdict, this Court must review the record in a light most favorable to the appellee. Cooper v. Peturis, 384 So.2d at 1088.

In Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738 (1890), this Court considered the general effect of reviewing jury verdicts and stated the following:

"The power to set aside verdicts has been generally regarded in this country as inherent in courts organized upon the principles of common law, though in some states it is regulated by statute, enumerating the grounds upon which a motion for a new trial may be made. The power is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of juries, which sometimes occurs. But, in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts. Being selected for their impartiality and qualification to judge facts, and unanimity of opinion and conclusion being required, their verdicts are presumed to be correct. It has been said, that no ground of new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. — Hilliard on New Trials, 339. The power should be exercised, only, when it affirmatively appears that the substantial ends of justice require the examination of the facts by another jury. If these be the principles by which the trial court should be governed, they apply with much more force to the exercise of the power by an appellate court. When the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is thereby strengthened. . . ."

92 Ala. at 633, 9 So. at 739. Cox's theory of liability was Herrington's negligent failure to yield the right of way. Herrington's defense was that Cox was guilty of contributory negligence because he was speeding in order to get to class on time.

In this case, Cox testified that he left his home on the morning of May 24, 1979, at approximately 7:35 a.m. on his way to a class at Bessemer State Technical College. He was traveling east on New Powder Plant Road. As he approached the intersection of Interstate 59 and New Powder Plant Road, Cox saw Herrington's automobile approximately 44 feet from his car as Herrington was moving into the left turn lane in order to enter the ramp of Interstate 59. To Cox, Herrington's automobile appeared to be stopping so as to yield. Cox stated that he slowed down by backing off his accelerator. Herrington, however, continued with his left turn and Cox turned his steering wheel to the left and locked his brakes. Cox stated that his speed was 30 miles per hour, but acknowledged that he testified in his deposition that he was traveling between 30 and 35 miles per hour. According to the investigating officer, the speed limit on New Powder Plant Road was 30 miles per hour.

Herrington testified that around 8:00 a.m. on the morning of the accident, he went to Pike's Barber Shop for a haircut. While the barber shop normally opened at 8:00 a.m., the barber sometimes opened it a little before 8:00 a.m. for him because the barber knew him. After receiving a haircut, Herrington left the barber shop and headed to work. Herrington was heading west on New Powder Plant Road when he moved into the left turn lane for the purpose of turning left onto the entrance ramp of Interstate 59. Herrington stated he drove up to the intersection in the left turn lane, stopped, looked to the right and saw Cox coming over the hill, looked to the left, turned back and "wham." Herrington stated that he thought he had time to make it but did not. Herrington further stated that he first saw Cox two tenths of a mile from the intersection. Herrington believed he was traveling approximately 10 miles per hour.

"If different inferences and conclusions may reasonably be drawn from the evidence, the question of liability must be left to the jury." Cooper v. Peturis, 384 So.2d at 1088.

The jury heard all of the testimony and the court's charge and reached a verdict in favor of defendant Herrington. After reviewing the evidence in a light most favorable to the appellee, this Court does not believe that the verdict was wrong and unjust. The decision by the trial judge to deny Cox's request for a new trial is affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.

FAULKNER, EMBRY and ADAMS, JJ., dissent.