Centennial Ice Co. v. Mitchell

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 688
• Citation: 215 Ala. 688,112 So. 239
• Parties: CENTENNIAL ICE CO. v. MITCHELL.
• Court: Alabama Supreme Court

112 So. 239

215 Ala. 688

CENTENNIAL ICE CO. v. MITCHELL.

6 Div. 688

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by George W. Mitchell against the Centennial Ice Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R.J McClure, of Birmingham, for appellant.

William A. Jacobs, of Birmingham, for appellee.

BROWN J.

This appeal is from a judgment of the circuit court, on a verdict of the jury awarding the plaintiff damages for personal injuries, alleged to have been inflicted upon him as the proximate consequence of negligence on the part of the defendant's servant, while acting within the line and scope of his employment, as the driver of defendant's truck. The case was submitted to the jury on the first count of the complaint, and the defendant's plea of not guilty and pleas of contributory negligence.

After the verdict for the plaintiff, the defendant made a motion for a new trial, grounding the motion on the refusal of the court to further delay the trial until the defendant could produce Dr. Nolan as a witness, the refusal by the court of special written charges requested by the defendant, and that the damages awarded were excessive, and the assignments of error are all based on the action of the court in overruling the motion for a new trial.

It was within the discretion of the trial court to postpone or delay the trial temporarily, in order that counsel might have an opportunity to produce the witness Dr. Nolan, or refuse to do so, and this action of the court is not revisable on appeal except for gross abuse, and in the circumstances disclosed by the record we cannot say that the discretion of the court was not properly exercised. Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619; Trammell v. Hudmon, 86 Ala. 472, 6 So. 4.

At the time of the injury the plaintiff was riding in a Ford truck, as the guest of the owner, who was driving it south on the right side of Twenty-Fifth street, in the city of Birmingham, while the defendant's truck was proceeding west on the right side of Third avenue, crossing Twenty-Fifth street. The evidence is without dispute that the Ford, on entering the intersection of the street, kept to the right and the defendant's truck swerved to the left and collided with the Ford truck near the southwest corner of the intersection. There was evidence showing--in fact, it was undisputed, that the brakes on the defendant's truck were very defective, and that this fact was known to the driver. There was evidence tending to show that, when the driver of the defendant's truck discovered that a collision was probable, in attempting to avoid the collision, he veered toward the left side of the avenue and came in collision with the other truck, while, if he had kept his course across the street on the right side of the avenue, his truck would have cleared in the rear of the Ford, avoiding the collision. In the light of this evidence, it was for the jury to determine what, if any, influence the defective brake had, and whether the defendant's driver was guilty of negligence proximately causing the plaintiff's injuries, and the refusal of the written charge, made the basis of the eleventh ground of the defendant's motion for a new trial, was free from error.

Contributory negligence is a special and affirmative defense, and to be pleaded at all must be pleaded with particularity, and no other acts of negligence than those specially pleaded can be proven on the trial, and, if proven, they cannot be made a predicate for a verdict for the defendant. Southern R. Co. v. Shelton, Adm'r, 136 Ala. 191, 34 So. 194.

The acts of negligence ascribed to the plaintiff as proximately contributing to his injury in the defendant's pleas 2, 3 and 4 are not all hypothesized in the several written charges requested by and refused to the defendant on the...