Dudley v. Alabama Utilities Service Co., 7 Div. 93.

• Citation: 144 So. 5,225 Ala. 531
• Decision Date: 06 October 1932
• Docket Number: 7 Div. 93.
• Parties: DUDLEY v. ALABAMA UTILITIES SERVICE CO.
• Court: Supreme Court of Alabama

144 So. 5

225 Ala. 531

DUDLEY v. ALABAMA UTILITIES SERVICE CO.

7 Div. 93.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action for damages for personal injuries by Ollian Dudley, a minor suing by his next friend, L. D. Dudley, against the Alabama Utilities Service Company. From a judgment for defendant plaintiff appeals.

Affirmed.

Ross Blackmon, of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

KNIGHT J.

As a result of a collision between a motorcycle upon which plaintiff was riding, and a motortruck operated by one of defendant's servants, the plaintiff, a boy of eighteen years of age, suffered certain personal injuries. This suit is prosecuted by the plaintiff against the owner of the truck to recover damages for the injuries so sustained by him.

Count A charges simple negligence, while count B ascribes plaintiff's injuries to the wanton misconduct of defendant's servant or agent in the operation of the motortruck.

The accident occurred at the intersection of Seventh street and Wilmer avenue, in the city of Anniston, Ala.

In addition to the plea of the general issue, the defendant interposed a number of special pleas, each setting up the defense of contributory negligence on the part of the plaintiff. These pleas of contributory negligence were limited, of course, to the count charging simple negligence.

There was a verdict in favor of the defendant, and judgment accordingly.

The errors assigned by appellant relate to certain charges given by the court at the written request of the defendant.

Charge 16, given at the request of the defendant, was in the following language: "The court charges the jury that if you believe from the evidence that the plaintiff was himself guilty of the slightest negligence which in any way contributed to the injuries received by him, then you cannot find for the plaintiff under count A of the complaint." Confessedly this charge was bad, and should not have been given. It was bad for the reason that it failed to hypothesize that such negligence "proximately" contributed to the injuries. Brooks v. Rowell, 222 Ala. 616, 133 So. 903; McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 633, 635, 108 So. 596; Godfrey v. Vinson, 215 Ala. 166, 167, 110 So. 13; Garrett v. L. & N. R. R. Co., 196 Ala. 52, 71 So. 685; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702. Of course, the error in giving this erroneous charge was not cured by the fact that, in the court's oral charge, or in other special charges given at the request of defendant, the jury were properly instructed that only such negligence as proximately contributed to his injury could be considered. Birmingham Ry., L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Roberson v. State, 183 Ala. 43, 62 So. 837; Ala. T. & N. R. Co. v. Huggins, 205 Ala. 80, 87 So. 546; Birmingham Ry., L. & P. Co. v. Hunt, 200 Ala. 560, 76 So. 918.

But for the reasons hereafter stated, the error in giving the above-mentioned charge would necessitate a reversal of this cause. Likewise, other charges given at the request of defendant may be subject to criticism, but a discussion of them is unnecessary to the determination of this case.

The evidence without substantial conflict shows that the truck was traveling along Seventh street, proceeding eastward, and that the plaintiff on the motorcycle was proceeding south along Wilmer avenue; that Seventh street and Wilmer avenue intersect, and that it was within the intersection of these two streets that the accident occurred; that the truck was traveling at a rate of speed of eight to twelve miles an hour, while the speed of the motorcycle was greater. It is without substantial conflict in the evidence that the truck and motorcycle approached or entered the intersection of the two streets at approximately the same time; that the truck was on the right, and had the right of way. The plaintiff, testifying in his own behalf, said: "I saw the truck about twenty feet west of the...