Burns v. Bythwood
| Decision Date | 30 June 1938 |
| Docket Number | 6 Div. 207. |
| Citation | 184 So. 346,28 Ala.App. 335 |
| Parties | BURNS v. BYTHWOOD. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 4, 1938.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action by Mary Bythwood against J. G. Burns, for damages sustained in automobile collision. From a judgment for plaintiff defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Burns v. Bythwood, 184 So. 349.
J. B. Ivey, of Birmingham, for appellant.
Dan P. Barber, of Birmingham, for appellee.
The cause originated in the Intermediate Civil Court of Birmingham, Ala. The suit in that court was against this defendant and D. Lusco. Judgment was rendered against both defendants, and this defendant alone appealed to the Circuit Court where the plaintiff, by his attorney, filed Count "A" as follows:
"The plaintiff claims of the defendant the sum of Ninety-Four and 50/100 ($94.50) Dollars for this: that on to-wit February 22, 1937, plaintiff's car was parked on a public street in the City of Birmingham, Alabama, at to-wit: the intersection of Ave. F with 8th Street, and defendant so negligently conducted himself in the operation of his automobile at said time and place that a third automobile was caused to collide with plaintiff's said automobile, and as a proximate consequence of said collision and defendant's negligence, plaintiff's automobile was greatly damaged and rendered less valuable."
To this count the defendant filed demurrer, assigning ten grounds. This demurrer was overruled, and the cause proceeded to trial upon the plea of not guilty.
Under our system of pleadings, where, in a negligence case, the complaint shows a duty owed by defendant to the plaintiff, and a breach of that duty to the injury of plaintiff as a proximate cause thereof, very general averments of negligence will suffice. Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala. 227, 60 So. 851; Davis v. Drennen Co. Department Store, 189 Ala. 683, 66 So. 642; other authorities collated in 15 Ala. Digest, Negligence, p. 330, + 108 (1).
Under the authorities above cited, the court was not in error in overruling defendant's demurrer to the complaint.
The suit was for the damages to plaintiff's automobile. The facts, without dispute, disclose the damage as alleged. The plaintiff's automobile was parked on the side of Avenue F parallel with the curb and facing east, and at a place where it had a right to be. Plaintiff's car was run into and injured by a Ford Truck driven by Elliott Bruce. The Ford Truck was proceeding along Avenue F, and when it arrived at Ninth Street, at the point where Ninth Street crosses Avenue F, the truck collided with defendant's car, as a result of which Bruce was thrown from the truck; the truck dashed on without a driver, striking the rear of plaintiff's automobile thereby doing the damage complained of.
The foregoing evidence is without conflict, but from this point on the testimony for the plaintiff and the defendant is irreconcilable; that for the plaintiff tending to prove that the collision between the truck and the defendant's car was due to the negligence of the defendant, and that for the defendant tending to prove that the fault of the collision was entirely that of the driver of the truck. This, of course, was a question for the jury.
Another question, properly submitted to the jury under the facts, was as to whether or not there was a causal connection between the damage to plaintiff's car by such unbroken sequence so that the negligence was not only a cause, but was the proximate cause of the injury. Decatur Car Wheel & Mfg. Co. v. Mehaffey, 128 Ala. 242, 29 So. 646
.
If the defendant negligently ran into the truck being driven by Bruce, and that negligence caused the truck to run into and injure plaintiff's car, there was not only causal connection between the negligence complained of and the injury suffered, but such damage would be by a natural and unbroken sequence without intervening efficient cause, so that but for the negligence complained of, the injury would not have occurred. Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 52 So. 86. This question was also properly submitted to the jury under a correct charge by the trial judge.
The general rule as laid down in 45 C.J. 932 (492)4 is: "Where an intervening cause, which would not alone have caused the injury complained of, is set in operation by an original wrongful act, which is the probable cause of such injury, the person who set the original cause in operation will not be relieved from liability by reason of such intervening cause."
Another rule concisely stated, and well known, appears in 45 C.J. 895 (476): "If the concurrent negligence of two or more persons combined together results in an injury to a third person, they are jointly and severally liable and the injured person may recover from either or all; the concurring negligence of one is no excuse or defense to another; each is liable for the whole, even though another was equally culpable, or contributed in a greater degree to the injury."
The above rule is recognized and approved in Chambers et al. v. Cox, 222 Ala. 1, 130 So. 416.
There can be no doubt, from the evidence in this case, that the damage to plaintiff's car was the proximate result of a collision between defendant's car and the Ford Truck without such intervening cause as would preclude recovery. And, under this evidence, it was open to the jury to find that the negligence complained of was that of the defendant.
We are in full accord with the authorities quoted from and cited by appellant's counsel in the exhaustive brief filed by him in this case, but none of these cases are in conflict with what has been said in the foregoing opinion; nor, are they contrary to the rulings of the lower court on the trial of this case.
There are no questions, new or novel, presented by this...
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