Alewine v. Southern Ry. Co.

• Decision Date: 26 August 1988
• Citation: 531 So.2d 315
• Parties: Henry T. ALEWINE, individually and as administrator of the estate of Roxie Alewine, deceased v. SOUTHERN RAILWAY COMPANY, et al. 87-679.
• Court: Alabama Supreme Court

Page 315

531 So.2d 315

Henry T. ALEWINE, individually and as administrator of the estate of Roxie Alewine, deceased v. SOUTHERN RAILWAY COMPANY, et al.

87-679.

Supreme Court of Alabama.

Aug. 26, 1988.

S. Shay Samples and Richard D. Stratton of Hogan, Smith, Alspaugh, Samples & Pratt, William R. Hovater, Birmingham, for appellant.

Steve A. Baccus and David K. Howard of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.

SHORES, Justice.

Plaintiff Henry Alewine's automobile collided with a Southern Railway train. His wife Roxie, a passenger in his car, was killed; Henry was injured. He sued Southern Railway and other defendants, individually and as administrator of his wife's estate, and is appealing from a judgment entered on a jury verdict for the defendants.

The sole issue presented is whether the trial court erred to reversal by refusing one of the plaintiff's requested jury instructions. We affirm that portion of the judgment in favor of Southern Railway and against Henry Alewine, individually. We reverse that portion of the judgment in favor of Southern Railway et al. and against Henry Alewine as administrator of the estate of Roxie Alewine.

The defendants contend that the plaintiff failed to preserve this issue for review by not objecting with enough specificity to point out to the trial court its alleged error in refusing the charge.

The suit charged negligence on the part of the defendants and one of the defenses was contributory negligence on the part of the driver and the passenger.

At the conclusion of the trial court's oral charge to the jury, counsel for the plaintiff's lawyer made the following objection:

"We would respectfully except to the court's failure to give requested jury charges numbers 2, 6, 12, 13, 16, 18, 19, and 20. We also except to the court's failure to charge the jury that the contributory negligence, if any, of Mr. Alewine, is not a bar to recovery to the estate of Roxie Alewine."

In addition to the charges specifically referred to by number in the plaintiff's objection, a charge numbered 26 had been requested. It stated:

"Negligence, if any, of a husband driving an automobile in which the wife was riding as a guest does not bar the wife's right to recover against a third party if the wife is otherwise entitled to recovery."

In its oral charge to the jury, the trial court made several references to the fact that a finding of contributory negligence on the part of Mr. Alewine would bar his right to recover against the defendants. The court had also instructed the jury that Mrs. Alewine, as a passenger in the automobile, had a duty to use reasonable care to avoid injury to herself. Nowhere in the court's oral charge is there any mention of how a finding that the driver was negligent would affect the passenger's right to recover. The plaintiff's requested charge number 26, which the court refused, contained a correct statement of the law on that issue.

The question is: Was the plaintiff's objection sufficient to call the deficiency to the trial court's attention? We hold that it was in this case. Contributory negligence was a major issue in the case. There was abundant evidence from which the jury could find contributory negligence on the part of the driver. The passenger's representative was entitled to have the jury instructed on the effect of such a finding on a passenger's right to recover. The court did not so instruct the jury, and reversal is required if the issue was preserved.

"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection...."

Rule 51, Ala.R.Civ.P.

In Gardner v. Dorsey, 331 So.2d 634, 637 (Ala.1976), it is stated:

"Specificity has been regarded as extremely important by federal cases interpreting FRCP 51. Most cases draw a distinction between objections which recite portions of instructions and those which simply refer to instructions by number. An example is Delancey v. Moticheck Towing Service, Inc., 427 F.2d 897 (5th Cir.1970). There an objection in the form, 'In regard to defendant's submitted special charges 5 and 6 we would like to object to the court having given those charges', was held insufficient to preserve error, while an objection specifically pointing out the 'failure of the court to instruct, or define the term "wilful misconduct" ' was within Rule 51, even though no grounds were stated.

"This is not to say that the practice of specifically reciting objectionable portions of a charge will normally relieve a party from stating grounds for objections; however, this case is an exception because of the error involved. The trial Judge's instruction in the instant case misstated a point of substantive law. Federal courts, in narrow and limited circumstances, have held that misstatements of substantive law in jury instructions can be preserved for review without specifically stating grounds for objection."

In Grayco Resources, Inc. v. Poole, 500 So.2d 1030, 1032-33 (Ala.1986), we stated:

"It is true that we have construed Rule 51 to proscribe general...