Carter v. Ne-Hi Bottling Co.
| Decision Date | 16 March 1933 |
| Docket Number | 7 Div. 155. |
| Citation | 226 Ala. 324,146 So. 821 |
| Court | Alabama Supreme Court |
| Parties | CARTER v. NE-HI BOTTLING CO. |
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Action for personal injury and property damage by B. L. Carter against the Ne-Hi Bottling Company of Boaz, Ala. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Goodhue & Lusk, of Gadsden, for appellant.
Culli & Culli, of Gadsden, and Luke P. Hunt, of Birmingham, for appellee.
Another collision between motor vehicles, on a public highway, in broad daylight, resulting in personal injuries to plaintiff and properly damage to both vehicles. The collision itself speaks negligence on the part of one and possibly of each of the two drivers.
The plaintiff's car, driven by the plaintiff himself, was proceeding towards Boaz, while the defendant's truck driven by the defendant's servant or agent, Copeland, was proceeding towards Attalla. The accident occurred just beyond the "over-head bridge" on the Boaz side of the railroad. The plaintiff testified that he was traveling about thirty-five miles an hour, while defendant's testimony tended to show that the speed of plaintiff's car was about forty or forty-five miles an hour. Defendant's testimony tended to show that the speed of its truck was from fifteen to twenty miles an hour, while plaintiff testified that the speed of defendant's truck was about thirty-five miles an hour. The driver of each of the cars could see the other for a distance of (certainly) not less than three hundred feet. It was daylight, around 7 a. m., and the road was free of obstructions and sufficiently wide to permit the two motor vehicles to pass each other with ease and safety.
There were verdict and judgment for defendant, and from that judgment this appeal is prosecuted. Only two questions are here presented for review, one arising upon the giving of charge numbered 1 at request of defendant, and the other is predicated upon the court's refusal to grant plaintiff's motion for new trial.
The evidence, under the pleadings, presented a jury case, both as to negligence on the part of defendant's servant in the operation of the truck and contributory negligence on the part of plaintiff.
Charge 1 is in the following language: "The court charges the jury that if the plaintiff, Carter, on the occasion in question could have by the exercise of reasonable care and prudence avoided the collision between his automobile and the truck of defendant and failed to do so, then the plaintiff would not be entitled to recover any damages in this suit notwithstanding...
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... ... 252, 254, 80 ... So. 90, 92; Britt v. Daniel, 230 Ala. 79, 159 So ... 684; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 ... So. 821. The case should not be reversed on the oral ... ...
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Shepherd v. Gardner Wholesale, Inc.
...Ala.App. 349, 102 So. 61); Seaboard A.L. Ry. Co. v. Laney, 199 Ala. 654, 75 So. 15; Thompson v. Duncan, 76 Ala. 334; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Brooks v. Rowell, 222 Ala. 616, 133 So. 903; Kelly v. Hanwick, supra (228 Ala. 336, 153 So. The appellee cites Alabam......
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Robinson v. Morrison
...requested by the litigants (unless specifically requested to correct the erroneous ones) or by the oral charge. Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Terry v. Nelms, 256 Ala. 291, 54 So.2d There is, however, an exception to this rule, where the defendants might properly h......
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...& N. R. Co., supra; Seaboard A. L. Ry. Co. v. Laney, 199 Ala. 654, 75 So. 15; Thompson v. Duncan, 76 Ala. 334; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Brooks v. Rowell, 222 Ala. 616, 133 So. 903; Kelly v. Hanwick, True, as argued by able counsel, there were other instructio......