Johnson v. McNear

• Decision Date: 19 April 1951
• Docket Number: 8 Div. 539
• Citation: 52 So.2d 154,255 Ala. 457
• Parties: JOHNSON et al. v. McNEAR.
• Court: Alabama Supreme Court

Page 154

52 So.2d 154

255 Ala. 457

JOHNSON et al. v. McNEAR.

8 Div. 539.

Supreme Court of Alabama.

April 19, 1951.

Marion F. Lusk, of Guntersville, for appellants.

Scruggs & Scruggs, of Guntersville, for appellee. The following charge was refused to defendants: 'A. Gentlemen of the Jury, if you believe the evidences you cannot find for plaintiff under count 2 of the complaint.'

These charges were given for plaintiff:

'7. The court charges the jury that even if you find from the evidence in this case that the plaintiff was guilty of contributory negligence, yet if you further find from the evidence that defendant became aware of plaintiff's peril in time to avoid inflicting the injury by the proper use of a preventive means at its command, yet inadvertently or negligently failed to resort to such means, the plaintiff is entitled to recover.

'8. The court charges the jury that if they are reasonably satisfied from the evidence that the defendant's servants or agents consciously failed, after becoming aware of the peril of the plaintiff, to do all in their power with the means at hand to avoid injuring the plaintiff, and the plaintiff's injury was the proximate cause of such failure, then the servants or agents of the defendant would be guilty of wantonness, and the jury will find for the plaintiff, even though the jury should believe that plaintiff was himself guilty of contributory negligence which proximately helped to bring about his injury.

'9. The court charges the jury that contributory negligence by the plaintiff in this case which will bar her recovery 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 or his servant or agent 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 that there was such negligence, will not prevent a recovery.

'10. I further charge you Gentlemen of the Jury that a driver of a motor vehicle who is at the time of the accident operating or driving said motor vehicle in violation of the criminal law of the State of Alabama is guilty of negligence and if you find from all evidence in this case after considering it all together and are convinced to your reasonable satisfaction therefrom that the Defendant, A. M. Huskey was the servant or agent of the Defendant, Johnson, in driving said motor vehicle and that said Huskey was at said time and place of this accident operating said motor vehicle being then operated by him in violation of the criminal laws of the State of Alabama or any of them then said Johnson would be driving or operating said motor vehicle negligently and if you find that such fact in this case from said testimony and find that said negligence contributed to and was the proximate cause of the accident or injury to the Plaintiff then your verdict should be for the Plaintiff.

'12. The court charges the jury that negligence is the wrongful doing of an act or the wrongful omission to act, which results in damages, but without intent to do wrong or cause damage. Under this definition it is not necessary, nor does the law require, that an intent to do wrong, or an intent to cause injury, should be shown.

'13. The court charges the jury that actionable negligence consists in the neglect of the use of ordinary care and skill toward a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect plaintiff has suffered injury to his person.'

BROWN, Justice.

The plaintiff, appellee here, had a verdict and judgment for $4,000 for personal injuries suffered in a collision between a trailer truck and a passenger automobile in which she was traveling on a highway in Marshall County on October 22, 1945. At the time of the collision the truck was proceeding northwardly down the western slope of Sand Mountain leading from Albertville towards Guntersville, Alabama. The passenger vehicle, a four passenger Chevrolet owned by E. T. Martin, was being driven by plaintiff's father L. W. McNear in a southerly direction towards Albertville. At the point on the highway where the collision occurred there is a considerable grade and sharp curves and the collision occurred in a short straightaway between two curves about noon. The driver of the Chevrolet and the plaintiff, age 17, were on the front seat and Martin and a sister of the plaintiff were occupying the rear seat. The highway at the point of collision was covered and surfaced by an 18 foot wide asphalt pavement and there was at the time a drizzling rain.

The truck belonged to the defendant Johnson and was being driven by A. M. Huskey, an employee of Johnson. At the point of the collision there is a deep mountain gorge with a precipiced slope immediately west of the highway protected by cable on concrete posts and to the east a sharp bluff-like rise of the mountain.

According to phases of the evidence offered by the defendant, immediately before the collision the truck had traversed a curve to the north and was straightening up when the Chevrolet coming easterly up the mountain turned a sharp curve to the south about 200 feet ahead of the truck, the east side of the Chevrolet going over the modian line of the highway. The driver of the passenger vehicle swerved to his right avoiding contact with the cab of the truck but collided with the trailer of the truck and ran into the left rear dual wheels of the truck, knocking them loose and pushing them to the rear. Some phases...