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RUSSELL v. MATHIS12/6/1996
In this wrongful death action the plaintiff appeals from a judgment based on a jury verdict for the defendants. The plaintiff raises two issues: (1) whether the trial court erred in not allowing the plaintiff to disclose to the jury that the defendants had insurance coverage, after defense counsel had argued insurance information to the jury; and (2) whether the trial court erred in instructing the jury with regard to the defense of contributory negligence. We affirm.
Johnnie Sue Russell filed this wrongful death action in the Circuit Court of Talladega County, as executrix of the estate of Nell B. Owings, alleging that an automobile accident that occurred on September 13, 1993, and resulted in the death of Nell B. Owings, was proximately caused by negligence on the part of employees of the State of Alabama Department of Transportation. The facts indicate that Ms. Owings, 79 years old, was driving down 13th Street S.W. in Childersburg and that when she attempted to enter U.S. Highway 280 from 13th Street her vehicle was struck by a vehicle driven by a motorist traveling east on U.S. Highway 280. The plaintiff contends that the defendants created a hazard while they were performing maintenance work on a drainage structure at the intersection of U.S. Highway 280 and 13th Street S.W. by placing three vehicles so near the intersection that the vision of motorists entering U.S. Highway 280 from 13th Street was obstructed and that the obstruction proximately caused Ms. Owings's death.
The case was heard before a jury. Four witnesses testified that the vehicles placed at the location by the defendants created a dangerous and hazardous condition on the day Ms. Owings was killed. There was also evidence presented indicating that road workers such as the defendants are aware of the danger of obstructing a motorist's vision; that transportation work crews have the responsibility to do something about such a hazard; and that the procedure they should have followed in this instance would have been to control traffic on Highway 280 by placing road construction signs, lights, cones, flashing arrows, or a flagman to indicate to motorists that maintenance work was being done. No evidence indicated that any kind of notice was given to alert motorists about any kind of highway maintenance.
There were no eyewitnesses to the actual collision. However, one of the defendants, Kenny Garrett, testified that, while he was using a power shovel to smooth dirt around a drainage facility grate off the roadway at the
intersection, he saw Ms. Owings's vehicle coming down 13th Street and that he "motioned for her to stop." He testified that he "motioned for her to stop" because, he said, "she wasn't showing any initiative to stop at the stop sign." Garrett further testified that " seems like to me she wasn't paying any attention to what she really was doing or whatever — just that instinct I just threw my hand up." After he "motioned for her to stop," he said, he turned his head back to the boom on the shovel at the work site and then "heard a loud noise."
Russell argues that Garrett's trial testimony and his answers to interrogatories conflict in regard to what actually occurred before the accident. Russell argues that in Garrett's interrogatory answers he said that he saw Ms. Owings run the stop sign, but that at trial he admitted that he did not know whether or not she had stopped. We note that the record contains conflicting evidence presented by both parties as to what actually occurred and what was said before the accident and after it.
The jury, after brief deliberations, returned a verdict in favor of all defendants. The plaintiff moved for a judgment notwithstandi
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