Crocker v. Lee, 1 Div. 598

• Court: Supreme Court of Alabama
• Writing for the Court: SIMPSON; LIVINGSTON
• Citation: 261 Ala. 439,74 So.2d 429
• Docket Number: 1 Div. 598
• Decision Date: 30 August 1954
• Parties: H. H. CROCKER v. John T. LEE.

Page 429

74 So.2d 429 261 Ala. 439 H. H. CROCKER
v.
John T. LEE. 1 Div. 598. Supreme Court of Alabama. Aug. 30, 1954.

[261 Ala. 441]

Page 431

The following charges were given for defendant:

'C. The Court charges the Jury, that a pedestrian attempting to cross a street who, without necessity, places himself in a position of danger from an approaching automobile through inadvertence, forgetfulness, inattention, absent-mindedness or carelessness,

Page 432

is guilty of contributory negligence barring his recovery of damages, if such negligence proximately contributed to cause his injury.'

'9. The Court charges the Jury, that if you are reasonably satisfied from the evidence in this case that the negligence of the Plaintiff in any way contributed to his injury, then in that event your verdict should be for the Defendant under Count A of the Complaint.'

'10. The Court charges the Jury, that if you are reasonably satisfied from the evidence in this case that the negligence of the Plaintiff was a proximate cause of the injuries, the basis of this litigation, then in that event your verdict should be for the Defendant.'

'11. The Court charges the Jury, that under the laws of the State of Alabama, that if the negligence of the injured party in any way contributes to his injury then he cannot recover damages from another party whose simple negligence also contributes to said injuries.'

'24. The Court charges the jury that the burden of proof is upon the plaintiff to show that the proximate cause of the plaintiff's damages were the direct result of the negligence of the defendant; if you are not reasonably satisfied from the evidence in this case that the plaintiff has proven such negligence on the part of the defendant as being the proximate cause of the plaintiff's damages, your verdict should be for the defendant.'

This charge was refused to plaintiff:

'11. The Court charges the jury that contributory negligence by the plaintiff in this case which will bar his recovery under Count A must be such as that it caused the injury complained of or proximately contributed thereto, and even though you find from the evidence that the negligence of the plaintiff, if there was such negligence, was merely the cause of a condition upon which the negligence of the defendant in failing to use the means within his power to avoid the injury after becoming aware of the plaintiff's peril, operated as the sole proximate cause of the injury complained of, such negligence on the part of the plaintiff, if you find there was such negligence, will not prevent a recovery.'

N. S. Hare, Monroeville, for appellant.

[261 Ala. 442] B. E. Jones and R. L. Jones, Evergreen and Monroeville, for appellee.

[261 Ala. 443] Clifford Emond, Bryan Chancey, Clifford Emond, Jr., Chas. B. Aycock, T. Eric Embry, John H. Martin, Jr., and Walter L. Mims, Birmingham, and W. E. Brobston, Bessemer, amici curiae, in support of appeal.

SIMPSON, Justice.

H. H. Crocker, of the age of about seventy-seven years, sued John T. Lee for damages for personal injuries received by him when he was struck by Lee's automobile as he was walking across Highway No. 11 at the intersection of Pike Street and said highway just outside of the city limits of Monroeville, Alabama. From a judgment for the defendant the plaintiff brings this appeal.

The case went to the jury on Count A, charging simple negligence, and Count B charging wantonness. The pleas were in short by consent, so the issues tendered under Count A were the negligence of the defendant, both initial and subsequent, and the contributory negligence of the plaintiff, and under Count B, the charge of wantonness as against the plea of the general issue.

Page 433

There were several charges on contributory negligence given at the request of the defendant which were prejudicially erroneous, thereby requiring a reversal of the cause. Following are the governing principles:

First, a charge is erroneous which fails to hypothesize that the negligence of the plaintiff as a bar to recovery proximately contributed to the plaintiff's injury. Such negligence in order to defeat recovery under a plea of contributory negligence must be a concurring proximate cause of the injury and not merely a remote or antecedent cause or condition. Terry v. Nelms, 256 Ala. 291, 54 So.2d 282, and cases cited; Smith v. Crenshaw, 220 Ala. 510, 126 So. 127.

Charges 9 and 11 violated this rule in omitting 'proximate' and the consistent holding of this court has been that when the charge is so fatally omissive, its giving, under the circumstances, will be error to reverse. Terry v. Nelms, supra, and cases cited.

Second, the giving of a charge is erroneous which predicates a finding of no liability of the defendant on the hypothesis that the plaintiff was guilty of negligence proximately contributing to his injury where there is a wanton count in the complaint and properly submitted to the jury, since contributory negligence is no defense to such a charge. Garth v. North Alabama Traction Co., 148 Ala. 96, 42 So. 627; Ashley v. McMurray, 222 Ala. 32(9), 130 So. 401. Charges C, 10 and 11 violated this principle and were erroneously given.

Charge 24 was faulty since the fact that the defendant was not guilty of negligence would not preclude a finding that he was guilty of willful or wanton conduct. Coleman v. Hamilton Storage Co., 235 Ala. 553(13), 180 So. 553. It is noticed that a similar charge was approved in Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642. But it would seem from the report of that case there was no evidence to support the wanton count and it was not considered by the court.

To avert the criticism leveled at the last four charges, appellee argues that there was no evidence justifying submission of the [261 Ala. 444] wanton count to the jury and that, therefore, the giving of the charges was error without injury. Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516.

Following are the salient features of the evidence most favorable to the plaintiff: The defendant was driving his automobile on Highway 11 at a speed of approximately fifty miles per hour in a residence district, as defined by the Code, Title 36, § 1(34). This rate of speed was prima facie unlawful, twenty-five miles per hour being the maximum speed which is regarded under the statute as prima facie lawful. Code, Title 36, § 5. Defendant was proceeding in his automobile toward the intersection of Pike Street and the highway, where the plaintiff was, according to his testimony, preparing to cross. Defendant was familiar with the intersection; it was a populous crossing, much used by the public. He knew the plaintiff and had seen him over 625 feet away standing on the opposite side of the highway at or near the crossing. As...