Schrimsher v. Sullivan

402 So. 2d 935, 1981 Ala. LEXIS 3656
CourtSupreme Court of Alabama
DecidedJuly 24, 1981
Docket79-921
StatusPublished

This text of 402 So. 2d 935 (Schrimsher v. Sullivan) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schrimsher v. Sullivan, 402 So. 2d 935, 1981 Ala. LEXIS 3656 (Ala. 1981).

Opinion

SHORES, Justice.

This is an appeal by the plaintiffs from a judgment entered on a jury verdict in favor of the defendant. The suit arose from a collision on Highway 20 between the defendant Sullivan’s automobile and a patch roller (equipment for laying asphalt pavement) operated by the plaintiff Schrimsher.

On March 17, 1977, Schrimsher was operating a patch roller around the abutment of a bridge on Highway 20 for the Highway Department. Highway 20, divided by a median, consists of two westbound lanes leading to Decatur, Alabama, and two eastbound lanes leading to Huntsville, Alabama.

The paving work on the bridge along the two westbound lanes of traffic had been completed before the accident. Schrimsher had driven the patch roller some twelve hundred feet westwardly on the inside or left-hand westbound lane to the first crossover, turned into the crossover and stopped to check the traffic before proceeding to the eastbound lanes of the bridge.

Schrimsher testified that he saw a tractor trailer approximately one-half mile west of him, driving in the outside or right-hand lane of the two eastbound lanes. He then turned onto the inside or left-hand lane of the two eastbound lanes and proceeded towards the bridge at a rate of two to three miles per hour. He also testified that he intended to remain within that lane until he reached the bridge. The vehicular traffic on the highway at that time was described as “pretty heavy.”

[936]*936Schrimsher had traveled approximately two hundred thirty-nine feet down the inside or left-hand lane when his vehicle was struck in the rear by the automobile driven by Sullivan.

Sullivan testified that immediately prior to the accident she was driving east towards Huntsville and was following a tractor trailer in the outside or right-hand lane. In attempting to pass the tractor trailer, she had just pulled out of that lane onto the inside or left-hand lane when she first saw the patch roller, jammed on her brakes, and struck the roller. The roller measured five feet eight inches in total width, was five feet high, and thirteen feet long.

Schrimsher testified that as a result of the accident, he had an operation to remove a herniated disc from his back and was forced to retire from work. The plaintiff Aetna Casualty and Surety Company paid Schrimsher’s workmen’s compensation benefits for the injury suffered by Schrimsher as a result of the accident and, therefore, claimed its right of subrogation.

At trial the plaintiffs alleged defendant’s negligence and wantonness. The jury returned a verdict in favor of the defendant. Both plaintiffs appeal.

The sole issue on appeal is whether the trial court erred in refusing the plaintiffs’ requested charges while granting the defendant’s charges relating to Code 1975, § 32-5-55, which, although repealed by Acts 1980, No. 80-434, § 15-106, effective May 19, 1980, was in effect at the time of the accident. The statute states:

Upon all highways of sufficient width, except upon one way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of such highway unless it is obstructed or impassable and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in Section 32-5-131 and 32-5-132. Any person violating this section shall be guilty of a misdemeanor and punished as provided in Section 32-5-312.

The plaintiffs’ requested charges that were refused state:

No. 23. The Court charges the jury that Alabama Code (1975), Section 32-5-67(3) which requires that slow moving vehicles use the right lane does not apply to a multiple lane highway and therefore does not apply to the Plaintiff, Clarence Schrimsher, in this case.
No. 74. The Court charges the jury that one using a highway divided by a median with two lanes of traffic going in either direction is, subject to the rule that he must exercise reasonable care for others thereon, free to travel in any portion of the highway he chooses, having due regard for the safety of others.

The defendant’s requested charges that were given by the court and duly excepted by the plaintiffs state:

No. 16. The Court charges the jury that the law in the State of Alabama provides that upon all highways of sufficient width, the driver of a vehicle shall drive the same upon the right half of the highway, and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of such highway, unless it is obstructed or impassable, and except when overtaking or passing another vehicle. The Court further instructs the jury that if you are reasonably satisfied from all of the evidence in this ease that the Plaintiff, Clarence Schrimsher, Jr., violated the foregoing provision of law, such violation on his part would constitute negligence as a matter of law, and the Plaintiffs herein could not recover under the claim premised upon negligence, if such negligence on the part of the Plaintiff, Clarence Schrimsher, Jr., proximate-Iy contributed to the injuries and damages claimed herein.
No. 18. The Court charges the jury that the law of the State of Alabama provides that upon all highways of sufficient width, the driver of a vehicle shall drive the same on the right half of the highway and shall drive a slow moving vehicle as closely as possible to the right hand edge or curb of said highway, unless it is ob[937]*937structed or impassable, and except when overtaking and passing another vehicle. The Court further instructs the jury that the Defendant, Joan Silver Sullivan, had the right to assume that the Plaintiff, Clarence Schrimsher, Jr., in operating a slow moving asphalt roller, would observe the rule of the road mentioned above, and that she is entitled to act upon the assumption that until such time as she was reasonably and sufficiently apprised of the fact that the Plaintiff, Clarence Schrimsher, Jr. would not observe the rule of the road.

By giving the defendant’s requested charges, the trial court, in effect, interpreted Code 1975, § 32-5-55, to apply to four lane highways. We agree.

This Court has long held that violations of the statutory rules of the road which proximately result in injury to another constitute negligence per se. See Murphree v. Campbell, 266 Ala. 501, 97 So.2d 892 (1957). It is also an established rule that a driver of a vehicle on Alabama highways may proceed in the exercise of reasonable care under the assumption that others in traffic around him will observe the statutory rules of the road. See Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963).

However, the plaintiffs claim that the rule of the road requiring drivers to stay on the right-hand side did not apply, as a matter of law, to multiple lane highways. In support, they cite Brown v. Bush, 220 Ala. 130, 124 So. 300 (1929). In that case, a requested jury charge stated:

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Related

Murphree v. Campbell
97 So. 2d 892 (Supreme Court of Alabama, 1957)
Thompson v. Magic City Trucking Service
154 So. 2d 306 (Supreme Court of Alabama, 1963)
Riehl v. De Quaine
127 N.W.2d 788 (Wisconsin Supreme Court, 1964)
Brown v. Bush
124 So. 300 (Supreme Court of Alabama, 1929)
Hubbard v. Thrasher
157 So. 680 (Alabama Court of Appeals, 1934)
Luquire Ins. Co. v. McCalla
13 So. 2d 865 (Supreme Court of Alabama, 1943)
Claypoole v. Motor Finance Corp.
15 A.2d 794 (Supreme Court of New Jersey, 1940)
Poe v. New Amsterdam Casualty Co.
154 So. 2d 519 (Louisiana Court of Appeal, 1963)
Daniel v. Matthews
246 So. 2d 457 (Court of Civil Appeals of Alabama, 1971)

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Bluebook (online)
402 So. 2d 935, 1981 Ala. LEXIS 3656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrimsher-v-sullivan-ala-1981.