Goodwyn v. Gibson

• Decision Date: 11 November 1937
• Docket Number: 4 Div. 970
• Citation: 177 So. 140,235 Ala. 19
• Parties: GOODWYN et al. v. GIBSON.
• Court: Alabama Supreme Court

177 So. 140

235 Ala. 19

GOODWYN et al. v. GIBSON.

4 Div. 970

Supreme Court of Alabama

November 11, 1937

Appeal from Circuit Court, Pike County; W.L. Parks, Judge.

Action for damages for personal injuries by William Gibson, a minor suing by his next friend, J. Russell Gibson, against W.B Goodwyn and Sam Murphree, partners doing business as Goodwyn & Murphree. From a judgment for plaintiff, defendants appeal.

Affirmed.

Whether contractors doing work in streets were negligent in leaving barricade in street held for jury, as respects contractors' liability for injuries sustained when bicyclist ran into barricade while attempting to evade negligent motorist.

The following charges were refused to defendants:

"2. The court charges the jury that the defendants are not responsible to the plaintiff for any negligent act of a third person unless they could have as experienced and prudent persons have reasonably foreseen that such third person would have so acted negligently.

"3. If the jury find that in this case the negligence of some third person intervened and caused the injury to the plaintiff by forcing him to ride into the barricade across the street in question and such negligence could not have been reasonably foreseen by the defendants, and that such person acted independently of the defendants and not under their control, then the act of leaving the barricade across the street was not the proximate cause of the injury to the plaintiff and a verdict should not be returned by the jury against the defendants."

"6. The Court charges the jury that in order for them to return a verdict in favor of the plaintiff, the negligence of the defendants must have been the proximate cause of the injury to the plaintiff, and that the injury must have been the natural and probable consequence of the negligent act, such as an ordinarily prudent man ought reasonably to have foreseen might probably occur as the result of his negligence; but that the defendants are responsible only for the consequences produced by their own acts, and if the negligence of another person intervened, acting independently of the defendants and caused the injury to the plaintiff and not under the control of the defendants, and which negligence could not have been reasonably foreseen by the defendants a verdict should not be rendered against them.

"7. The court charges the jury that unless the negligent acts of the defendants are the proximate cause of the injury to the plaintiff, without the intervention of any other efficient cause which the defendants could be reasonably expected to foresee, as prudent and experienced men, then they are not liable to the plaintiff and a verdict should be returned in their favor."

Wilkerson & Brannen, of Troy, for appellants.

Walters & Walters, of Troy, for appellee.

BROWN Justice.

This is an action on the case by an infant, eleven years of age, against the defendants, construction contractors, for negligently leaving on Elm street, a public street, in the city of Troy, Ala., an obstruction "in such a manner as to make it dangerous for pedestrians, or other persons passing along or across said street."

The single count in the complaint avers that: "While the plaintiff, William Gibson, was passing along said Elm Street as a bicyclist, it became necessary for him to evade being hit by an automobile driven by a person unknown to the plaintiff, who was negligently driving said automobile, and while in the act of evading such automobile, the plaintiff, William Gibson, ran into or against the said obstruction with great force and violence, and the only possible manner of evading the said automobile, without being seriously injured or killed by it, was for the plaintiff to run into the said obstruction" with serious resulting injuries cataloged in the count."

The count also avers: "That all of his injuries and damages were proximately caused by the negligence of the defendants, their agents, servants, or employees, as aforesaid, in negligently obstructing the said road." (Italics supplied.)

The demurrer, overruled by the circuit court, took the points that "the alleged negligence of the defendants was not the proximate cause of the plaintiff, minor, running into the alleged obstruction," and that defendants are not liable to plaintiff for injuries and damages, "which appear to have been caused by the negligence of some third person, and which were not the proximate consequence of the alleged negligence."

The appellant now insists that the court erred in overruling these grounds of demurrer.

It is sufficient answer to this contention that the inducement in the complaint does not show that the act of said third person proximately caused said injury, and hence the averments of the count, italicized, that plaintiff's injuries and damages were proximately caused by defendants' negligence in leaving said obstruction in said public road, are not inconsistent with or contradicted by the other averments of the count.

The mere fact that there was an intervening cause is not, as a matter of law, sufficient to constitute "a non-conductor and insulate the negligence" of the defendants. Such intervening cause must be sufficient in and of itself to break the natural sequence of the first negligence and stand as the efficient cause of the injury and damage.

When a person...