Chambers v. Cox

• Decision Date: 23 October 1930
• Docket Number: 8 Div. 213.
• Citation: 222 Ala. 1,130 So. 416
• Parties: CHAMBERS ET AL. v. COX.
• Court: Alabama Supreme Court

130 So. 416

222 Ala. 1

CHAMBERS ET AL. v. COX.

8 Div. 213.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.

Action for damages for personal injuries by Sallie Cox against R. A Chambers and others, doing business as R. A. Chambers & Sons. From a judgment for plaintiff, defendants appeal.

Transferred from Court of Appeals.

Affirmed.

D. L Rosenau, Jr., of Athens, for appellant.

Walter J. Price, of Huntsville, and Fred Wall, of Athens, for appellee.

GARDNER J.

Defendants operate a bus running between Decatur and Athens. Near 6 o'clock of December 22, 1928, while three miles out from Athens, the driver parked the bus to repair a puncture. It was dark and very dusty. Plaintiff was a passenger guest in the car of her nephew E. H. Buckner, and traveling in the same direction as the bus. Buckner was driving, and had sole control of his car, and ran into the rear of the bus while so parked for the tire repair. Buckner insists he was traveling with lights burning, looking ahead, and at a speed of about 30 miles an hour, but he did not see the bus until within a few feet, and too near to prevent the collision.

Plaintiff sustained injuries for which she recovered a judgment against defendants as operators of the bus. Plaintiff's evidence tends to show that the bus was parked in the traveled portion of the graveled highway, though there was ample room for it to have been placed for proper tire repair, several feet to the right and out of the way of approaching cars. Her evidence tends further to show negligence of the bus driver in failing to have signal light on the rear of the bus burning.

The evidence of the defendants was to the contrary as to both of these issues of facts, and presents a sharp conflict in the proof.

Demurrers to the first four original counts of the complaint were sustained, and the complaint amended by interposing count B, to which original demurrers were refiled. It is quite apparent that numerous grounds of demurrer are inapplicable to count B. The ruling of the court on this demurrer is given scant consideration in brief, and needs no discussion here. Suffice it to say count B was not subject to any ground of demurrer interposed thereto.

Appellant argues the refusal of the affirmative charge as error upon the theory that the proof fails to show the negligence of defendants' driver was the proximate cause of the accident, but that the same was attributable to the negligence of Buckner solely. But this insistence assumes Buckner's negligence as a matter of law, which clearly is incorrect, and further overlooks the well-recognized rule that "injury arising from the concurring negligence of joint tort-feasors, whether acting together or independently, may be redressed by joint or several action." Steenhuis v. Holland, 217 Ala. 105, 115 So. 2, 3. If defendants' agent was at fault, guilty of actionable negligence, in bringing about the collision, there was no lack of proximate causal connection between the negligence charged and the damage so suffered, though Buckner may also have been negligent in the operation of the car in which plaintiff was riding. Ruffin Coal Co. v. Rich, 214 Ala. 633, 108 So. 596; 4 Corpus Juris, pp. 920-928. "As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause of the injury." 45 Corpus Juris, 920; Western Ry. Co. v. Sistrunk, 85 Ala. 352, 5 So. 79. The affirmative charge was properly refused.

Nor are we persuaded, under the well-recognized rule of Cobb v. Malone, 92 Ala. 630, 9 So. 738, that the action of the court in overruling the motion for a new trial upon the ground that the verdict was contrary to the preponderance of the evidence or that it was excessive, should be here disturbed.

Nor was there error in declining to permit the witness Chambers to testify that the rear light of the bus was burning when he saw it that night, as this was not only considerable length of time from the accident, but was after the car had been brought into Athens from a distance of about three miles. The evidence called for was too remote.

The trial court will not be reversed for giving an abstract charge "unless it appears that the jury were thereby misled to the prejudice of the appellant." Allen v Birmingham So. R. Co., 210 Ala. 41, 97 So. 93, 94; ...