Monte v. Narramore

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 564
• Parties: MONTE v. NARRAMORE.
• Court: Alabama Supreme Court

77 So. 726

201 Ala. 200

MONTE v. NARRAMORE.

6 Div. 564

Supreme Court of Alabama

January 17, 1918

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by John C. Narramore against Peter Monte for damages occasioned by being struck by an automobile. Judgment for defendant was set aside on motion, and new trial ordered, and defendant appeals. Affirmed.

The charges referred to in grounds 9 and 10 are as follows:

(9) The court charges the jury that if, after due consideration of all the evidence in the case, the jury are in doubt or in a state of confusion as to the issues drawn in the case, they cannot find a verdict for plaintiff.

(10) The court charges the jury that, if their minds are in a state of confusion or doubt as to whether or not plaintiff did anything by way of negligence which proximately contributed to his own injury, then the verdict cannot be for plaintiff.

John W Altman, of Birmingham, and Perry & Mims, of Bessemer, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

ANDERSON C.J.

There was jury and verdict for the defendant, whereupon the plaintiff moved for a new trial, which was granted by the trial court, and defendant prosecutes this appeal from the action of the trial court in granting plaintiff's said motion for a new trial.

It is sufficient to say, in justification of the action of the trial court in granting the new trial, that it committed reversible error in giving the defendant's requested charges as embodied in grounds 9 and 10 of the motion for new trial. By use of the word "doubt," whether coupled with "confusion" in the alternative or not, they placed too high a degree of proof upon the plaintiff. In the case of A.G.S.R.R. Co. v. Robinson, 183 Ala. 265, 62 So. 813, we held, after reviewing the authorities, that charges predicated upon "doubt" or "uncertainty," one or both, are incorrect, and should be refused. We also suggested that charges using the word "confusion" could well be refused, but declined to hold that the giving of charges of the last character would amount to reversible error. Since the Robinson Case, supra, we have declined to reverse a case for the giving of a charge using the word "confused" or "confusion." But we have found no justification for giving charges like the ones in the case at bar, and think that the trial court erred in giving same, and properly corrected the error by granting the new trial.

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