Tindell v. Guy

• Decision Date: 17 December 1942
• Docket Number: 4 Div. 254.
• Citation: 243 Ala. 535,10 So.2d 862
• Parties: TINDELL v. GUY.
• Court: Alabama Supreme Court

10 So.2d 862

243 Ala. 535

TINDELL v. GUY.

4 Div. 254.

Supreme Court of Alabama

December 17, 1942

John W. Rish, of Dothan, for appellant.

W L. Lee, Alto V. Lee, III, and W. Perry Calhoun, all of Dothan, for appellee.

THOMAS Justice.

The suit by the administratrix was for death of intestate caused by collision with defendant's automobile.

Amended plea four for contributory negligence was subject to the demurrer and was no answer to count two declaring for the willful and wanton conduct of defendant. This ruling was corrected by the trial court in the general charge and in written charge number two, given at the defendant's request, limiting that plea to the count declaring for simple negligence, and excluding it as an answer to the second count declaring for a willful and wanton injury. Jones v Alabama Mineral R. Co., 107 Ala. 400, 18 So. 30.

As to given and requested charges, we may observe it is established, that a count in simple negligence embraces subsequent negligence after discovery of the peril on the part of a defendant (Birmingham Stove &amp Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334); that a violation of statutory rules of the road prima facie constitutes simple negligence (Greer v. Marriott, 232 Ala. 194, 167 So. 599), and that a person using a highway has the right to assume, without facts warning him to the contrary, that other persons using the public highway will do so in a lawful manner. Holman v. Brady, 241 Ala. 487, 3 So.2d 30.

The testimony was in conflict, and there was no error in declining the affirmative charges, the material issues of fact being for the jury. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. Charges 26 and 27, being affirmative charges, were correctly refused.

There were many given charges for the plaintiff and taken in connection with the oral charge of the court (with the exception of Charge No. 7), touching the issues of fact presented by the pleading and evidence, fully and fairly instruct the jury as to matters sought to be presented by the refused charges. Moreover, the appellant does not indicate the respective charges on which he predicates error. Mere recital of what is shown by the record is not considered as an insistence on the assignment. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

Charge 7, which was refused by the court, is as follows: "(7) I charge you gentlemen of the jury that if you are reasonably satisfied, after considering all of the testimony in the case, that any witness has sworn falsely to any material fact in the case you are authorized by law to disregard all of the testimony of such witness and to decline to consider such testimony in reaching a verdict."

In Clendenon v. Yarbrough, 233 Ala. 269, 270, 171 So 277, 278, this court recently declared as to proximate cause and intervening cause, not a consequence of the first, that "an admirable statement of it is found in the text of 22 R.C.L. 132 et seq. We quote a part as follows: 'Whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequences would not have happened, the second cause is ordinarily regarded as the proximate cause and the other as the remote cause. As has been aptly said, "the intervener acts as a nonconductor and insulates the negligence."' And again, on page 138, the converse is true, when a 'person by his negligence produces a dangerous condition of things, which does not become active for mischief until another person has...