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Hales v. Thompson8/3/1993
Wayne Hales (plaintiff), administrator of the estate of his deceased son Donald Wayne Hales (Donald), appeals from a judgment that he recover nothing in a wrongful death action against Alton Ray Thompson (defendant), and from the trial court's denial of his Rule 59 motion for a new trial.
Donald and defendant were involved in an automobile accident on 9 December 1988, which resulted in Donald's death and serious injuries to defendant. On 8 February 1989, plaintiff, duly qualified as administrator of Donald's estate, filed a complaint against defendant on behalf of Donald's estate. Donald died intestate. The complaint alleged that defendant had negligently driven his vehicle into the eastbound lane of Highway 42 and struck the vehicle operated by Donald, thereby proximately causing his death. The complaint further alleged that defendant was negligent in that he failed to maintain proper control of his vehicle and a proper lookout, was operating his vehicle at a greater than reasonable speed, failed to decrease speed to avoid the collision, and failed to travel on the right side of the highway. Defendant answered, denying negligence and asserting the affirmative defenses of contributory negligence, sudden emergency and assumption of the risk. Defendant also counterclaimed to recover for his own injuries, alleging that Donald was negligent in that he failed to yield the right-of-way, operated his vehicle without proper control, did not maintain a proper lookout, and turned into the path of defendant's vehicle without ascertaining that the movement could be made in safety.
Plaintiff filed a reply in which he alleged that, should it be determined that Donald was contributorially negligent, defendant still had the last clear chance to avoid the collision and that the conduct of defendant constituted willful and wanton negligence. Thereafter, defendant filed a motion in limine to exclude from evidence at the trial any reference to Donald's medical condition prior to the accident on the grounds that Donald's health at the time of his death was not in issue, and thus such information would be irrelevant, and that, if relevant, would be unfairly prejudicial to defendant. Specifically, defendant moved to exclude any reference to the fact that Donald had suffered from leukemia for a prolonged period of time prior to his death and had only recovered shortly before his death. Plaintiff opposed the motion on grounds that the information about Donald's battle with leukemia was relevant to show the relationship between Donald and his family and would not be unfairly prejudicial to defendant. The motion was granted. Plaintiff later made an offer of proof, in which Donald's mother testified on voir dire as to the illness and its effect on the family.
The case came to trial on 4 November 1991. The undisputed evidence shows that the accident occurred near the intersection of Radio Tower Road and Highway 42 in Wilson County at approximately 6:05 a.m. on 9 December 1988. Defendant was travelling west on Highway 42 and Donald was travelling on Radio Tower Road and approaching the stop sign at the intersection of Radio Tower Road and Highway 42. Donald attempted to make a left turn onto Highway 42, in front of the vehicle driven by defendant. Defendant's car struck Donald's car, killing Donald and injuring defendant.
Plaintiff's evidence tends to show that at the time of the accident, defendant was travelling at a high rate of speed. Donald attempted to make a left turn from the stop sign on Radio Tower Road into the eastbound lane of Highway 42. Defendant, upon seeing Donald enter the roadway, braked and swerved to the left, crossing over the center line of Highway 42 into the eastboun
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