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Belew v. Nelson12/16/2005
a yaw mark is and the circumstances under which a car leaves such a mark on the road. Based on this physical evidence, as well as on his examination of the direction in which the automobiles were facing at the time of the accident, Trooper Jones concluded that the McKelveys' car had been in Nelson's lane of travel and, just before the accident, returned, at least in part, to the McKelveys' lane of travel. Belew's assertion that there was no physical evidence indicating that the McKelveys' car had been in Nelson's lane of travel before the accident is incorrect.
Belew also argues that Trooper Jones's opinion was based on an inference that was derived from another inference, which, she asserts, is impermissible, citing Russell Corp. v. Sullivan, 790 So. 2d 940 (Ala. 2001). According to Belew
" he flaw in [Trooper Jones's] opinion [regarding the location of the McKelveys' car before the accident] is that no marks, or marks of any kind, were left in Nelson's lane of travel. The only marks that were possibly left by McKelvey were in his lane of travel. Therefore, the trooper not only had to infer that the marks were left by McKelvey, but upon that inference drew a second inference that based upon the location of the marks in McKelvey's lane, inferred that McKelvey's vehicle was in Nelson's lane of travel."
Again, however, Trooper Jones testified at trial that the McKelveys' car left yaw marks in both lanes of travel. This evidence eliminates one of the two inferences that Belew argues was made by Trooper Jones in reaching his ultimate opinion. As a result, her argument that Trooper Jones's opinion constitutes an inference based on an inference is without merit.
Belew next contends that the trial court erred in charging the jury as to voluntary intoxication, despite, she argues, the fact that there was no evidence presented that Mr. McKelvey was intoxicated. Alabama Pattern Jury Instruction - Civil 30.04, which the trial court read to the jury and about which Belew complains, reads:
"A person who voluntarily becomes intoxicated is required to exercise the same degree of care as is required of a sober person under the same or similar circumstances. It is proper for you to consider whether or not the plaintiff was intoxicated, together with all other facts and circumstances, in determining whether or not the plaintiff was contributorily negligent at the time of the occurrence."
Belew asserts that there are no Alabama cases directly on point with regard to the issue she presents, and, therefore, she cites cases from other jurisdictions for the proposition that a charge on voluntary intoxication is appropriate only when there is evidence of actual intoxication, not just consumption of alcohol. We find, however, that Alabama law is sufficiently developed on this issue such that reliance by this court on caselaw from other jurisdictions is inappropriate.
When contributory negligence is an issue, a jury charge on voluntary intoxication is appropriate when there is evidence of intoxication, because " ntoxication is relevant to the issue of negligence." Robinson v. Harris, 370 So. 2d 961, 967 (Ala. 1979). Consumption of alcoholic beverages is relevant evidence of intoxication. Id.; Chattahoochee Valley Ry. Co. v. Williams, 267 Ala. 464, 470, 103 So. 2d 762, 766 (1958). The weight to be given any such evidence is, of course, a matter for the trier of fact. Further, the relevance of such evidence is subject to the rule of remoteness: "Proof of prior consumption of intoxicating beverages is logically relevant to prove intoxication at a later time unless such drinking occurred at a time too remote to prove the alleged later intoxication." W
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