Montgomery Light & Traction Co. v. Harris

• Decision Date: 10 February 1916
• Docket Number: 3 Div. 174
• Citation: 197 Ala. 236,72 So. 545
• Parties: MONTGOMERY LIGHT & TRACTION CO. v. HARRIS.
• Court: Alabama Supreme Court

72 So. 545

197 Ala. 236

MONTGOMERY LIGHT & TRACTION CO. v. HARRIS.

3 Div. 174

Supreme Court of Alabama

February 10, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Ezekiel J. Harris against the Montgomery Light & Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing.

Mayfield J., dissenting.

Rushton Williams & Crenshaw, of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, and Banks, Deedmeyer &amp Birch, of Birmingham, for appellee.

MAYFIELD J.

The action is to recover damages for personal injuries. The trial was had on two counts, "1" and "A," each being predicated on simple negligence. To these counts the defendant pleaded the general issue, and, in short by consent, contributory negligence. The issues were found in favor of plaintiff, and his damages assessed at $3,000, and from the judgment defendant appeals.

The evidence was conflicting as to whether or not plaintiff was guilty of negligence which proximately contributed to his injury, and also conflicting as to the nature and character of the injuries, as well as to whether all of these injuries were the proximate result of the wrong complained of, or whether they could be referred to the negligence of the plaintiff subsequent to the initial negligence complained of. The record shows that each of these two questions was separately stressed and insisted upon in the examination of witnesses, and in the argument.

The defendant requested in writing, among others, the following charges:

"(1) The plaintiff must not recover any damages for any injury or impaired physical condition that resulted proximately from the slightest negligence on his part, if you find from the evidence that he was negligent in the slightest degree, and that such negligence proximately contributed to the injury."

"(7) If under all the evidence in this case, the jury find that plaintiff's own negligence contributed proximately, even in the slightest degree, to his fall, the plaintiff cannot recover."

The court gave charge 1, but refused charge 7, which refusal the defendant assigns and insists upon as error to reverse. A charge very similar to charge 7 was held to be correct in the case of B.R., L. & P. Co. v. Bynum, 139 Ala. 389, 36 So. 736. The ruling was criticized, however, in the case of the same appellant against Fox, 174 Ala. 657, 676, 56 So. 1013, on the ground that the charge did not hypothesize the contributory negligence pleaded, as, under our rulings, only the particular contributory negligence pleaded is availing as a defense. It would seem that the latter case was a holding to the effect that the charge was good but for the defect pointed out in the opinion. That particular defect is not availing, as applied to the charge and record in question, for the reason that contributory negligence was pleaded in this case "in short by consent," and hence any proved negligence on the part of the plaintiff would be availing if it proximately contributed to the injury. The charge on its face certainly asserts a correct position of law. Such a charge should be given, when properly requested, in a case in which it is applicable, unless it can be refused for some one or more of the reasons insisted upon by appellee in this case, or for the reason pointed out in Fox's Case, supra.

We have above shown that the reason assigned in Fox's Case is not applicable here; and we will now notice the reasons assigned by appellee to justify its refusal. It is first insisted that the charge assumes that plaintiff was guilty of negligence and does not submit that question to the jury. We are not impressed by this insistence. While the charge is possibly susceptible of this construction or...