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Belew v. Nelson12/16/2005
This case involves a traffic accident in which Johnny Dean McKelvey, one of the drivers of the two vehicles involved in the accident, died as a result of the injuries he sustained in the accident. Gloria Dean Belew, the administrator of the estate of Johnny McKelvey, appeals from the Lauderdale Circuit Court's judgment entered on a jury verdict in favor of Joe Patrick Nelson, the driver of the other vehicle involved in the accident, and Nelson Loader Service, a business wholly owned by Nelson. We affirm.
On the morning of July 17, 2000, Johnny Dean McKelvey and his wife, Deborah Jean McKelvey, left their home and drove to Florence for the purpose of paying certain bills. On their way home, around noon, they stopped at a restaurant called LaFonda's for lunch. During lunch, Mr. and Mrs. McKelvey each ordered two drinks known as "the Bull." The Bull is a combination of a Dos Equis beer, tequila, triple sec (an orange-flavored liqueur), and lime. Mr. McKelvey consumed one and a half of the drinks, while Mrs. McKelvey consumed two and a half of the drinks. Mr. and Mrs. McKelvey remained at the restaurant for approximately an hour and a half.
After lunch, Mrs. McKelvey felt too impaired from the alcohol to drive, so Mr. McKelvey drove. Because they enjoyed their drinks from lunch, they stopped at a liquor store and purchased the ingredients to make them at home. On their way home after they left the liquor store, they turned onto Highway 76, traveling east on that road.
On the same day, as part of his job , Nelson was driving his dump truck west on Highway 76. As Nelson and the McKelveys were rounding a curve on Highway 76, their vehicles collided. The curve bore to the right for Nelson, and to the left for the McKelveys. Skid marks left by Nelson's dump truck on the highway indicated that he applied his brakes while his truck was still entirely in his lane of travel but that his truck continued in a straight line during the skid so that, because the road curved to the right, his truck crossed the center line and collided with the McKelveys' car in the McKelveys' lane of travel. Mr. McKelvey died as a result of the injuries he sustained in the accident.
On July 15, 2002, Belew, as administrator of Mr. McKelvey's estate, instituted an action against Nelson and Nelson Loader Service (hereinafter collectively referred to as "the defendants") alleging a wrongful-death claim. The defendants answered the complaint, denying all the material allegations thereof. The defendants filed a motion for a summary judgment, which the trial court denied.
On November 16, 2004, the court held a jury trial. As to the cause of the accident, the testimony was conflicting. Nelson testified that, as he was approaching the curve, he saw that the McKelveys' car was entirely in his lane of travel and that, to avoid hitting them, he slammed on his brakes. He testified that there were two impacts between his truck and the McKelveys' car. The first, he testified, occurred in his lane of travel and involved the front of his truck striking the McKelveys' car. The second, he testified, occurred in the McKelveys' lane of travel when the back of his truck, because the truck had begun to spin after the initial impact, slid into the McKelveys' lane of travel. He testified that the only time his truck entered the McKelveys' lane of travel was when, after the initial impact, his truck began to spin out of control.
Mrs. McKelvey, on the other hand, testified that the McKelveys' vehicle never left the eastbound lane of travel and was never in Nelson's lane of travel. She admitted on cross-examination that she was turned toward and talking to her husband right before the accident occurre
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