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WADE MILLS AND BRUNT-WARD CHEVROLET-OLDSMOBILE-PONTIAC-BUICK-CADILLAC, INC. v. HELEN ANN BARNHILL

MAY 24, 1989

WADE MILLS AND BRUNT-WARD CHEVROLET-OLDSMOBILE-PONTIAC-BUICK-CADILLAC, INC.
v.
HELEN ANN BARNHILL



BEFORE HAWKINS, P.J., PRATHER AND PITTMAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

Helen Ann Barnhill, plaintiff below, brought this personal injury action seeking recovery for injuries suffered after being struck by an automobile driven by appellant Wade Mills, an employee of appellant car dealership. The injuries were received as appellee was crossing the street. The jury found in Barnhill's favor, awarding $7,500.00 in damages. The car driver and his employer have now appealed this verdict, citing as error the following:

(1) THE VERDICT OF THE JURY IN THIS CASE HAD TO BE BASED ENTIRELY ON "GENERAL NEGLIGENCE" , AND APPELLANT'S MOTION FOR A J.N.O.V. OR FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.

 I.

 On the afternoon of August 8, 1986, Barnhill was having her hair styled at a beauty shop in Louisville. It began raining, and she left the shop to roll up the windows in her car, which was parked nearby. She walked down some stairs to Court Street, which apparently did not have a pedestrian walkway at the intersection below the beauty shop. The appellee testified that she looked twice both ways before crossing the street and saw no cars coming. After taking only a few steps into the street, at a point between the intersections, she looked up to see a car being driven by appellant Mills coming toward her. She tried to jump out of the way, but was unable to do so. The car struck her on the right hip, throwing her to the ground in the process.

 Appellant Wade Mills, employed as a mechanic with the Brent-Ward car dealership, was test-driving the vehicle in question, checking for problems with its transmission. He testified that he was heading south on Court Street, with a steady, although not heavy rain falling. He claimed to only be going 10 to 15 miles per hour, because of the rain. Mills testified that the appellee suddenly stepped out into the street, from the west, and although he put on the brakes, he was unable to avoid hitting her. He got out of the car and helped her to the side of the street. The brakes on the car were in good working order.

 The appellee was later taken to the hospital and remained there for several days. Her injuries consisted of a large bruise on her right hip, and headaches which she claimed to still suffer from at the time of trial. The headaches were severe enough to cause her to miss many days of work, a situation that had never existed prior to the accident.

 Although not at issue on this appeal, the appellee had accumulated $1,827.30 in medical-related bills at the time of trial, and she had also suffered lost wages in the amount of $477.37. On appeal, the appellants are not challenging the amount of damages awarded at trial.

 II.

 WAS THE JURY'S VERDICT IN THIS CASE BASED ENTIRELY ON "GENERAL NEGLIGENCE" , AND SHOULD APPELLANT'S MOTION FOR A J.N.O.V. OR FOR A NEW TRIAL THEREFORE HAVE BEEN GRANTED?

 Under the appellant's lone assignment of error, they contend that the jury's verdict was based on a general negligence theory, instead of being based on jury instructions which alleged specific negligent acts.

 A total of thirteen jury instructions were given to the jury by the trial judge. Of these, three instructions addressed the negligence issue. These three instructions, P-9, P-10, and D-10 read as follows:

 Instruction P-9

 The Court instructs the jury that negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing ...


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