Routledge v. Schmitt, 6 Div. 562.

• Decision Date: 14 March 1940
• Docket Number: 6 Div. 562.
• Citation: 239 Ala. 436,195 So. 246
• Parties: ROUTLEDGE v. SCHMITT.
• Court: Alabama Supreme Court

195 So. 246

239 Ala. 436

ROUTLEDGE v. SCHMITT.

6 Div. 562.

Supreme Court of Alabama

March 14, 1940

Rehearing Denied April 11, 1940.

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Trespass on the case by Lou Schmitt, a minor, suing by her next friend, Lena T. Schmitt, against Harry Routledge for injuries sustained in an automobile collision. From an order setting aside verdict and judgment for defendant and granting a new trial, defendant appeals.

Affirmed.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Wilkinson & Wilkinson and Frank A. Wilkinson, Jr., all of Birmingham for appellee.

BROWN Justice.

Trespass on the case for damages for personal injury received by the appellee in a collision of the automobile of appellant with that of plaintiff's sister in which the plaintiff was riding as an invitee. The first count of the complaint ascribes the injury to defendant's negligence, while the second count charges wantonness. The defendant pleaded the general issue in short by consent with leave to give in evidence "any matter which if well pleaded, would be admissible in defense of the action," with like leave to the plaintiff to reply.

The first trial resulted in a verdict and judgment for the plaintiff assessing her damages at one dollar. On plaintiff's motion this verdict was set aside and new trial ordered. On appeal from that order to the Court of Appeals the same was affirmed. Routledge v. Schmitt, 28 Ala.App. 167, 180 So. 127.

On the trial following that affirmance the verdict was for the defendant, and on motion the court set that verdict aside and granted another trial. It is from this order that this appeal is prosecuted. The motion for new trial embodied one hundred and forty-one grounds, all except the last three, based upon alleged erroneous rulings of the court on the trial. The last three grounds, 139, 140 and 141, in different phraseology assert that the verdict for the defendant was not warranted by the evidence.

The order granting the new trial is in words following: "It is ordered and adjudged by the Court that this motion be and the same is hereby granted, verdict and judgment set aside and case re-instated, but not on ground 139, 140, or 141 of motion, and defendant excepts."

We shall not undertake a discussion of the numerous grounds of the motion, and questions of law predicated thereon. It is sufficient for the purposes of this appeal to note that some one or more of the grounds of the motion were well taken.

The evidence was in conflict and presented a case for jury decision. The evidence as to the nature and extent of the plaintiff's injuries was in sharp conflict. The major insistence on the trial was that the impact in collision was so severe that, she was not only physically shocked, bruised and scratched,...