Hines v. Champion

• Decision Date: 22 April 1920
• Docket Number: 4 Div. 844
• Citation: 204 Ala. 227,85 So. 511
• Parties: HINES, Director General of Railroads, v. CHAMPION.
• Court: Alabama Supreme Court

85 So. 511

204 Ala. 227

HINES, Director General of Railroads, v. CHAMPION.

4 Div. 844

Supreme Court of Alabama

April 22, 1920

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Action by T.D. Champion against Walker D. Hines, as Director General of Railroads (Louisville & Nashville Railroad Company), for damages for injury to automobile. Judgment for defendant which on the motion of the plaintiff was set aside, and defendant appeals. Affirmed.

George W. Jones, of Montgomery, and Henry Opp and Powell, Albritton & Albritton, all of Andalusia, for appellant.

J Morgan Prestwood, of Andalusia, for appellee.

GARDNER J.

In discussing charge 5 (the giving of which, at the request of the defendant, formed the basis of the order for a new trial), counsel for appellant insist that the evidence offered by the plaintiff, if believed, made out a case of wantonness, and invokes the doctrine announced in Louisville & Nashville R.R. Co. v. Perkins, 152 Ala 133, 44 So. 602, to the effect that no recovery could be had upon simple negligence, where the testimony tends only to establish an intentional or wanton wrong, and that the charge is to be construed as if there was no proof of subsequent negligence. In that case, as disclosed by the opinion, the record was entirely silent as to any fact or inference warranting a conclusion that negligence proximately caused the intestate's death. That authority is without application here.

The evidence has been carefully considered and will not be here discussed in detail. While some of the testimony for the plaintiff was doubtless sufficient for the submission of the wanton count to the jury for consideration, yet in passing upon the correctness of this charge it must be kept in mind that the jury must consider the entire evidence in the cause, and when this is done it will be found that the issue of subsequent negligence was also properly submitted for their consideration. It is, of course, a familiar rule that under a count for simple negligence recovery may be had for subsequent negligence. L. & N.R.R. Co. v. Calvert, 172 Ala. 597, 55 So. 812.

Indeed, a reading of the record is rather persuasive that the cause was tried largely upon the theory of subsequent negligence. The plaintiff himself did not insist that he had observed the rule of stop, look, and listen, for he admits that he merely slowed his car down to about 4 miles an hour. For this failure on his part to preclude him from a recovery upon simple or initial negligence, such must have contributed proximately to the injuries. The "negligent act, in order to defeat a recovery, must have been the proximate cause, *** not the remote cause, or mere condition." So.Ry. Co. v. Jones, 143 Ala. 328, 39 So. 118; Cent. of Ga. v. Hyatt, 151 Ala. 355, 43 So. 867; Bailey v. So.Ry. Co., 196 Ala. 133, 72 So....