Ward v. Meadows

Decision Date07 April 1921
Docket Number6 Div. 158
Citation205 Ala. 432,88 So. 427
PartiesWARD v. MEADOWS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by J.L. Ward against J.A. Meadows. Judgment for defendant and plaintiff appeals. Reversed and remanded.

W.A Denson, of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

GARDNER J.

The first assignment of error presents for review the action of the court in giving the affirmative charge at the defendant's request as to count 2. This count specifically relies for recovery upon the negligence of defendant after he became aware of plaintiff's peril, and negligently failing to use all means at his command to avoid the collision, when by the use thereof the accident could have been averted. The giving of this charge was therefore an instruction to the jury, in effect, that the plaintiff could not recover upon the theory of subsequent negligence.

We are persuaded this was error. From the defendant's evidence the jury could infer that he became aware of the plaintiff's peril just as he turned his car from the driveway into Juniper street, for he says he then saw that the motorcycle was going to skid, and immediately slowed his car and "eased around" the corner, and that at this time the plaintiff was about 75 feet distant. The plaintiff insisted that he was driving his motorcycle on the right-hand side of the street, never a greater distance than 9 feet from the curb, and that defendant drove his automobile across the street onto the side where plaintiff was, inflicting the injuries complained of. The evidence of the defendant was to the effect that at the rate of speed he was going he could have stopped his car within 10 or 11 feet. It is manifest, therefore, that if the plaintiff's evidence is to be believed, the jury could infer from all the testimony in the case that defendant did not use all the means at his command to avoid injuring the plaintiff after discovery of his peril; for, accepting the plaintiff's version of the accident, the defendant, instead of stopping within 11 feet, went across the street, and within 9 feet of the opposite curb, before striking plaintiff. The question of subsequent negligence therefore should have been submitted to the jury, and the court committed error in instructing them to the contrary.

Counsel for appellee insists the evidence supporting the defendant's theory...

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