Terry v. Nelms

• Decision Date: 17 May 1951
• Docket Number: 8 Div. 567
• Citation: 256 Ala. 291,54 So.2d 282
• Parties: TERRY v. NELMS.
• Court: Alabama Supreme Court

Page 282

54 So.2d 282

256 Ala. 291

TERRY v. NELMS.

8 Div. 567.

Supreme Court of Alabama.

May 17, 1951.

Rehearing Denied June 28, 1951.

Further Rehearing Denied Oct. 18, 1951.

R. B. Patton and D. U. Patton, Athens, and S. A. Lynne, Decatur, for appellant.

Peach, Caddell & Shanks, Decatur, for appellee.

This charge was given for defendant: '9. The court charges the jury that on the occasion in question, it was the duty of the plaintiff Terry to look up and down the street on which the defendant Nelms was driving and that what he could see by so looking, the law requires that he must see, and in legal contemplation he did see, and that the failure of the plaintiff Terry to see what he could have seen by the exercise of due diligence would be negligence on his part, which, if it contributed to his injury, would bar any recovery by him in this case.'

SIMPSON, Justice.

The appellant brought suit against appellee for personal injuries and property damage growing out of a collision of his automobile with defendant's truck at a street and highway intersection in the city of Decatur, Alabama. The usual conflicting tendencies of evidence obtained here, as in most such trials, but in view of our conclusions it will not be necessary to discuss it. From a judgment for the defendant, the plaintiff has appealed.

The question of importance is whether reversible error prevailed in giving for the defendant two patently erroneous requested charges, numbers 4 and 9. We will here reproduce 4 and the reporter will set out 9. '4. If you are reasonably satisfied from the evidence in this case that the plaintiff Terry was guilty of negligence on the occasion in question and that this negligence contributed in the slightest degree to his damage and injury you should not render a verdict in his favor but your verdict should be in favor of the defendant.'

Concededly the charge is erroneous in failing to hypothesize that the negligence of the plaintiff to bar recovery must proximately contribute to his injuries. Such negligence must be a concurring proximate cause of the injury and not merely a remote or antecedent occasion or condition of the injury to be available under a plea of contributory negligence. Hayes v. Alabama Power Co., 239 Ala. 207, 194 So. 505; Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 5; J. H. Burton & Sons Co. v. May, 212 Ala. 435, 103 So. 46; Hines v. Champion, 204 Ala. 227, 85 So. 511; McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; Newsome v. Louisville & N. R. Co., 20 Ala.App. 349, 102 So. 61.

Charge number 9 is subject to the same defect.

The consistent holding of this court has been that error to reverse must be pronounced in such a misdirection to the jury. McCaa v. Thomas, supra; Dudley v. Alabama Utilities Service Co., supra; Newsome v. Louisville & N. R. Co., supra; Seaboard A. L. Ry. Co. v. Laney, 199 Ala. 654, 75 So. 15; Thompson v. Duncan, 76 Ala. 334; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821; Brooks v. Rowell, 222 Ala. 616, 133 So. 903; Kelly v. Hanwick, supra.

True, as argued by able counsel, there were other instructions which properly charged on contributory negligence, but the precedent has also been established that the error in giving such an 'erroneous charge was not cured by the fact that, in the court's oral charge, or in other special charges given at the request of defendant, the jury were properly instructed that only such negligence as proximately contributed to his injury could be considered. Birmingham Ry., L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Roberson v. State, 183 Ala. 43, 62 So. 837; Ala., T. & N. R. Co. v. Huggins, 205 Ala. 80, 87 So. 546; Birmingham Ry., L. & P. Co. v. Hunt, 200 Ala. 560, 76 So. 918.' Dudley v. Alabama Utilities Service Co., supra, 225 Ala. 531, 532-533, 144 So. 5, 6.

The defendant's answering argument is also predicated on the principle of error without injury. McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332, 337, is thought to sustain the position. The case at hand is to be easily distinguished. Here positively erroneous instructions on the law of contributory negligence were given to the jury. They were fundamentally bad, in which circumstance we have said a reversal of the case is in order. In the McGough case the charges considered were held to be incomplete, but not altogether incorrect, and that the court's oral charge that 'no person is responsible for any negligence unless that negligence is the proximate cause of the injury or damage. That applies throughout the charge to anything I say' (emphasis supplied) effectually eradicated any prejudice which might have prevailed by the giving of the charges there considered.

In the case at bar, however, no such explanation was made by the trial court and, indeed, the same vice inhered in a portion of its oral instruction as regards contributory negligence, where the court charged: 'Nor does the defense of contributory negligence, which I will later define to you, prevent a recovery, if it is not the proximate cause, or if it does not contribute in some degree to the injury or damage.' The second alternative of the quoted excerpt pretermits proximate causation. This instruction, rather than remedying the defect in the two erroneous charges, approved them. To illustrate, the same situation prevailed in the case of Chapman v. Blackmore, 39 Ohio App. 425, 177 N.E. 772-773, where the court was considering an instruction in the alternative that the contributing negligence should have been either a proximate cause or must have contributed in the slightest degree to the accident. In analyzing the error, the court said: 'By the defendant's request No. 1 the jury was instructed that if the plaintiff was negligent in any respect, and 'such negligence was the proximate cause of the accident, or contributed thereto in the slightest decree,' a verdict should be returned for the defendant.

'Of course, it is fundamental that contributory negligence on the part of the plaintiff will not bar his recovery unless such negligence is a proximate or direct cause of the injury. * * *

'The instruction from which quotation has just been made indicates that this principle of law was appreciated and probably undertaken to be covered; but the instruction is in the alternative form, and justifies a finding that the plaintiff would be barred from recovery if his negligence contributed in the slightest degree to...