Smith v. Crenshaw

• Decision Date: 25 January 1930
• Docket Number: 3 Div. 913.
• Citation: 126 So. 127,220 Ala. 510
• Parties: SMITH v. CRENSHAW.
• Court: Alabama Supreme Court

126 So. 127

220 Ala. 510

SMITH v. CRENSHAW.

3 Div. 913.

Supreme Court of Alabama

January 25, 1930

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for damages for personal injuries by Paul M. Smith against H F. Crenshaw, jr. From a judgment for defendant, plaintiff appeals. Affirmed.

C. P McIntyre and John A. Yung, both of Montgomery, for appellant.

Rushton Crenshaw & Rushton, for Montgomery, for appellee.

SAYRE J.

Appellant was injured in the collision of two automobiles, one driven by himself, the other by appellee. On the trial of appellant's action for damages, a jury returned a verdict for appellee. Hence this appeal.

On appellee's request the court gave the following charge in writing:

"I charge you that if you believe from the evidence that Mr. Smith was guilty of contributory negligence which proximately contributed, even in the slightest degree, to the damages and injuries sustained by him you cannot return a verdict for the plaintiff."

The charge was given without error. It is not subject to the criticism visited upon charges 10 and 15 in McCaa v. Thomas, 207 Ala. 211, 92 So. 414, for the form of expression here is "proximately contributed"; whereas, the charges in McCaa v. Thomas denied the plaintiff's right of recovery if his negligence "in the slightest degree contributed to his injuries." Noting the fact that in the case here contributory negligence was pleaded in short and without specification of any of the factual elements of such defense, the action of the trial court in giving the charge in question is sustained by the rulings in Montgomery Light & Traction Co. v. Harris, 197 Ala. 236, 72 So. 545, and B. R. L. & P. Co. v. Bynum, 139 Ala. 389, 36 So. 736.

Appellant places store by the opinion and decision in Conway v Robinson, 216 Ala. 495, 113 So. 531, 534. The point of the opinion in that case is to be found in the fact that the charge there considered undertook to define both actionable negligence on the part of defendant and contributory negligence on the part of plaintiff, and produced, to quote the opinion, "a most unfortunate impression as giving the jury to understand that the defendant was responsible for the slightest negligence, while plaintiff, on the other hand, was responsible only for negligence of a different sort, of a sort not to be described as slightest or even slight-thus, to the common understanding, setting up...