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12/02/94 KATHERINE ANN CRITTENDEN v. PATINA BURDEN

December 2, 1994

KATHERINE ANN CRITTENDEN, A MINOR, BY AND THROUGH HER FATHER AND NEXT FRIEND, VERNON WILLARD; AND VERNON WILLARD, INDIVIDUALLY
v.
PATINA BURDEN BRIGHT



Appeal from Morgan Circuit Court. (CV-90-148). Rudolph W. Slate, TRIAL JUDGE.

Released for Publication March 25, 1995.

Houston, Maddox, Almon, Shores, and Cook, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The plaintiffs, Katherine Ann Crittenden, a minor suing by and through her father, Vernon Willard, and Vernon Willard, individually, appeal from a judgment entered on a jury verdict in favor of the defendant, Patina Burden Bright. We affirm.

Nine-year-old Katherine sustained severe personal injuries when she was struck at an intersection by a vehicle being driven by Bright. Katherine and her father sued Bright, and the case was eventually submitted to the jury on their allegations of negligence. *fn1 The sole issue presented for our review is whether the trial court erred in refusing the plaintiffs' request that the jury be instructed on the "rule of the road" set out in Ala. Code 1975, § 32-5A-212(a), which provides:

"Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway."

The plaintiffs argued to the trial court, and they reaffirm their argument on appeal, that Katherine was injured while she was attempting to cross the intersection within an unmarked crosswalk and, therefore, that the rule set out in § 32-5A-212(a) was applicable with respect to the duty owed by a motorist to a pedestrian crossing a road within such a crosswalk. The plaintiffs apparently took the position that § 32-5A-212(a), by negative implication, casts upon a motorist a duty to yield the right-of-way to a pedestrian crossing a road within an unmarked crosswalk at an intersection. Bright, arguing that there was no evidence that Katherine was attempting to cross the road within an unmarked crosswalk when she was struck, took the position that the plaintiffs' requested instruction should be refused. Bright argues on appeal that the requested instruction was properly refused because, she says, § 32-5A-212(a) deals only with the duty owed by a pedestrian to a motorist and, therefore, was not applicable with respect to any issue in the case. The trial court refused the instruction on the ground that the reference in § 32-5A-212(a) to an "unmarked crossing" was so "confusing" and "nebulous" as to render the section "void and unenforceable."

The plaintiffs correctly point out that they were entitled to have their theory of the case, made by the pleadings and the issues, presented to the jury by the proper instructions and that reversible error occurred if the trial court failed to give those instructions. Alabama Farm Bureau Mutual Insurance Service, Inc. v. Jericho Plantation, Inc., 481 So. 2d 343 (Ala. 1985). However, § 32-5A-212(a) purports to confer upon a "pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection" the duty to "yield the right-of-way to all vehicles upon the roadway." Bright did not raise contributory negligence as an affirmative defense at trial; therefore, whether Katherine acted so as to contribute to the cause of her own injuries was not an issue. What was at issue, however, was whether Bright breached a duty with respect to Katherine. In connection with this issue the trial court instructed the jury in pertinent part as follows:

"Negligence is the failure to discharge or perform a legal duty owed to the other party. Negligence means the exercise -- the failure to exercise reasonable or ordinary care; that is, such care as a reasonably prudent person would have exercised under the same or similar circumstances. Therefore, negligence is the failure to do what a reasonably prudent person would have done under the same or similar circumstances or the doing -- or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances.

"The driver of a motor vehicle upon a public highway is under a duty to exercise reasonable care to avoid inflicting injury or damages upon others who may be lawfully using the same public highway. Reasonable care means such care as a reasonably prudent person would exercise under the same or similar circumstances. The driver of a motor vehicle must keep a lookout for those who are also using the highway and must exercise due care to anticipate the presence of others upon that highway. A motor vehicle driver is chargeable with knowledge of what a prudent and vigilant driver or operator would have seen, and is negligent if he fails to discover a vehicle or a person upon the highway he could have discovered in time to avoid the injury.

"A driver is also negligent if he sees a person located in a dangerous situation upon a highway and does not then exercise due care to avoid injury or damages to that person.

"A driver of a motor vehicle, seeing a small child near a roadway, cannot presume that the child will not suddenly run onto the roadway. The movements of the child should be watched and all steps taken to avoid injury which a reasonably careful and prudent driver would take under the same or similar circumstances.

"If a person, without fault of his own, is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation, and the fact, if it be a fact, that he does not choose the best or safest route of escaping peril or preventing injury is not necessarily negligence, but the standard of care required in an emergency situation ...


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